Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD184249, Michael T. Smyth, Judge.
NARES, Acting P. J.
In October 2004 Dierik Pratts entered a negotiated guilty plea to infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and misdemeanor violation of a stay-away order (§ 166, subd. (c)(1)). In November the court suspended imposition of sentence, placed him on three years' probation, imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed a $200 probation revocation fine (§ 1202.44) which it stayed pending successful completion of probation. In May the court revoked, reinstated, and modified probation. In December it revoked probation, suspended the execution of a three-year middle term prison sentence, reinstated and modified probation, imposed a $400 restitution fine, and suspended a $400 parole revocation fine (§ 1202.45). In October 2006 the court revoked probation, executed the suspended prison sentence, imposed a $400 restitution fine, suspended a $400 parole revocation fine, and deleted the fines imposed in November 2004.
All further statutory references are to the Penal Code.
Pratts appeals, contending the court erred by increasing the restitution fine from $200 to $400, and that the $400 parole revocation fine must be reduced to $200 to match the restitution fine. The People properly concede the point. (People v. Johnson (2003) 114 Cal.App.4th 284, 306-308.) We accordingly modify the judgment to reflect a $200 restitution fine in the place of the $400 restitution fine, and a $200 parole revocation fine in the place of the $400 parole revocation fine.
The People assert that the court erred by deleting the $200 probation revocation fine imposed in November 2004. Section 1202.44 provides that a probation revocation fine is to be "in the same amount as" the restitution fine, "shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record." (§ 1202.44.) The People argue there are no "compelling and extraordinary reasons stated on record." Pratts responds that because the court's action in deleting the fine did not constitute an unauthorized sentence, the People's failure to raise this claim below precludes them from doing so now. We agree. (People v. Scott (1994) 9 Cal.4th 331, 351-354; People v. Tillman (2000) 22 Cal.4th 300, 303 [sentencing court did not impose restitution fine and parole revocation fine which were mandatory absent a statement of "compelling and extraordinary reasons" (§ 1202.4, subd. (b)); People could not complain for the first time on appeal].) Additionally, the offense here took place in July 2004 before the August 16 effective date of section 1202.44, so that by deleting the probation revocation fine, the sentencing court avoided an ex post facto problem (People v. Callejas (2000) 85 Cal.App.4th 667).
DISPOSITION
The judgment is modified by striking the $400 restitution fine and reducing the $400 suspended parole revocation fine to $200. The $200 restitution fine remains in force. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: HALLER, J., IRION, J.