Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. NA071475 and NA072003, Gary Ferrari, Judge.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
On December 13, 2006, defendant and appellant Victor Poitier entered a no contest plea to a violation of Health and Safety Code section 11352, subdivision (a), for his conduct on October 14, 2006. The trial court imposed and suspended the upper term of five years in prison, subject to a term of formal probation, which included a $200 restitution fine under Penal Code section 1202.4, subdivision (b). On October 24, 2007, defendant was found in violation of probation. Probation was formally revoked and the suspended five-year prison term was imposed. The court orally ordered defendant to pay the $200 restitution fine. However, the minute order and abstract of judgment reflected a restitution fine and a parole revocation restitution fine, both in the amount of $1,000. Defendant timely appealed, contending the court was not authorized to impose restitution fines in excess of the $200 originally imposed. The Attorney General agrees the abstract of judgment must be modified to reflect restitution fines in the reduced amount of $200. We modify the judgment accordingly.
At that time, he was on probation pursuant to his conviction for another narcotics felony on September 11, 2006, superior court case No. NA071475. His probation on the prior matter was revoked, based on his current offense.
“A trial court has no statutory authority to order a second restitution fine upon revocation of probation, because a restitution fine imposed as a condition of probation [remains] in force despite revocation of probation.” (People v. Arata (2004) 118 Cal.App.4th 195, 201-202; accord, People v. Chambers (1998) 65 Cal.App.4th 819, 820-822.) Further, in accordance with Penal Code section 1202.45, the additional mandatory parole revocation restitution fine must be imposed in the same amount as the Penal Code section 1204.4 restitution fine. (People v. Smith (2001) 24 Cal.4th 849, 853.) Restitution and parole revocation fines that cannot lawfully be imposed under any circumstances in the case are unauthorized and may be corrected on appeal, even in the absence of an objection in the trial court. (Id. at pp. 852, 854; People v. Johnson (2003) 114 Cal.App.4th 284, 306-308; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534; People v. Chambers, supra, 65 Cal.App.4th at p. 823.)
In addition, as the Attorney General points out, the record indicates the trial court did not intend to change the amount of restitution imposed. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (E.g., People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) Accordingly, the restitution fine and the parole revocation restitution fine must be reduced to $200.
DISPOSITION
There stitution fine imposed pursuant to section 1202.4, subdivision (b), is reduced to $200. The parole revocation fine imposed pursuant to section 1202.45 is reduced to $200. The trial court is to insure that a corrected abstract of judgment is delivered in a timely fashion to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.