Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County. Ct. No. 29545, Brian L. McCabe, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.
OPINION
Appellant, Terry Keith Pleasant, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and resisting arrest (Pen. Code, § 148). On appeal, Pleasant contends the court erred when it imposed two restitution fines. We will affirm.
FACTS
On March 11, 2005, at approximately 9:00 a.m. Merced Police Officer Joseph Deliman saw Pleasant running towards his mother’s house and detained him. A search of Pleasant uncovered a bindle containing .48 grams of crystal methamphetamine in his right sock.
On May 6, 2005, the district attorney filed an information charging Pleasant with possession of methamphetamine (count 1/Health & Saf. Code, § 11377, subd. (a)), possession of drug paraphernalia (count 2/Health & Saf. Code, § 11364), possession of less than an ounce of marijuana (count 3/Health & Saf. Code, § 11357, subd. (b)), resisting arrest (count 4), and two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
On December 13, 2005, Pleasant pled no contest to counts 1 and 4 in exchange for the dismissal of the remaining counts and enhancements and time served on count 4. Additionally, the court agreed to impose the aggravated term of three years on count 1, suspend execution of sentence, and place Pleasant on felony probation.
On January 26, 2006, the court imposed a three-year term, suspended execution of sentence and placed Pleasant on probation for four years. The court also ordered him to pay a restitution fine of $200.
On July 11, 2006, Pleasant admitted violating his probation and the court reinstated it.
On February 23, 2007, Pleasant admitted violating his probation and the court remanded him into custody.
On September 5, 2007, the court sentenced Pleasant to the aggravated three-year term. It also imposed a $200 restitution fine.
DISCUSSION
Pleasant contends the court erred by imposing a second $200 restitution fine when it sentenced him on September 5, 2007. According to Pleasant, “[I]t is unclear whether the trial court improperly imposed a second [restitution] fine because the abstract of judgment does not specify that the $200 restitution fine was previously imposed at the time probation was granted rather than when [he] was sentenced to prison.” We disagree.
“[A] restitution fine imposed at the time probation is granted survives the revocation of probation.” (People v. Chambers (1998) 65 Cal.App.4th 819, 820.)
“[Moreover], it has long been settled that the burden is on an appellant to affirmatively show in the record that error was committed by the trial court: ‘[I]t is settled that: “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.” [Citation.] [Citations.]’ [Citation.]” (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
The failure of Pleasant’s abstract of judgment to state that the restitution fine it memorializes is the same restitution fine originally imposed by the court is insufficient to meet Pleasant’s burden of showing the court erred by imposing two restitution fines. Further, the court imposed identical $200 restitution fines when it originally placed him on probation and at his September 5, 2007, sentencing hearing and Pleasant’s abstract of judgment lists only one $200 restitution fine. Thus, it appears that at the September 5, 2007, hearing the court merely reimposed the $200 restitution fine it had previously imposed. Accordingly, we reject Pleasant’s contention that the court erred by imposing a second restitution fine when it sentenced him on September 5, 2007.
DISPOSITION
The judgment is affirmed.