Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. Nos. CR041021, CR065126
Reardon, Acting P.J.
After the trial court denied his motion to suppress, appellant Lee Roy Robblee II pled guilty to possession of a controlled substance and admitted violating the terms of his probation for a 2004 drug manufacturing conviction. (See Health & Saf. Code, §§ 11351, 11379.6, subd. (a).) He was convicted of the possession charge and his probation was revoked on the manufacturing conviction. Sentenced to six years in state prison for these two offenses, Robblee appeals, asserting that the trial court erred by denying his suppression motion and by imposing excessive restitution and parole revocation fines. We agree that the judgment must be modified to reduce these fines, but otherwise affirm the judgment.
All statutory references are to the Health and Safety Code unless otherwise indicated.
I. FACTS
A. 2004 Probation
In May 2004, appellant Lee Roy Robblee II was convicted of manufacturing marijuana. (See § 11379.6, subd. (a).) In August 2004, imposition of sentence was suspended and he was placed on probation for four years. One condition of probation was Robblee’s agreement to submit to a warrantless search of his residence or any area over which he had control. The trial court also imposed a restitution fine of $200—a reduction from the $1,400 amount that the probation department had originally sought. (See former Pen. Code, § 1202.4, subd. (b)(1) [as amended by Stats. 2000, ch. 1016, § 9.5]; see also fn. 11, post.) Twice, other conditions of Robblee’s probation were modified, but the search condition remained in force. B. 2006 Events
The facts are taken from the preliminary hearing transcript.
On September 20, 2006, Deputy United States Marshall William Gill went to the Town House Motel in Eureka with two state parole officers, Gary Woffinden and Lewis Haws. The motel owner confirmed that a man named Lee Roy was staying at the hotel. He was in room 22, which had been registered to Jessie Guyette.
Ms. Guyette was Robblee’s sister.
In the company of the parole officers, Deputy Gill knocked at the door of room 22. A parolee named Dennis Burriesci answered the door. As Burriesci stepped back and the door opened, Deputy Gill stepped into the doorway, while the parole officers remained outside. Agent Woffinden stood in the doorway. Standing just inside the door of the room, Deputy Gill identified himself as a police officer and, seeing another man and a woman in the room, asked the man if he was Lee Roy. The man—later identified as appellant Lee Roy Robblee II—sitting on the bed said that he was. Deputy Gill asked if Robblee had any identification and if he was on probation or parole. Robblee offered Deputy Gill his driver’s license and admitted that he was on probation. The deputy crossed the room to the bed to obtain Robblee’s identification. Agent Woffinden probably entered the room after the deputy. Robblee said that the room was not his.
Deputy Gill took Robblee’s driver’s license to his car and confirmed through the Eureka police dispatcher that Robblee was on probation subject to a general search and seizure condition of probation. With this certainty, Deputy Gill returned to room 22 and entered it, telling the occupants that he intended to search the room. By now, both parole agents were in the room, too. As he walked over to the bed that Robblee sat on, Deputy Gill saw on the floor—“ziplock” bags later found to contain 0.5 grams of crystal methamphetamine and 21 grams of heroin in aluminum foil. He placed Robblee under arrest, handcuffed Burriesci and made the woman—Regina Hawkins—stay outside while he and the parole officers searched the room. During that search, the officers found more heroin and methamphetamine, as well as a pouch containing 4.5 grams of heroin, 0.7 grams of cocaine base, 0.4 grams of cocaine salts and drug paraphernalia. The officers also found scales, a bong and a package of small plastic baggies typically used for drug packaging. A tote bag contained more of these baggies and prescription medication bottles with Robblee’s name on them. The amounts and the packaging satisfied Deputy Gill that the heroin was possessed for sale.
After the search, Deputy Gill spoke again with the motel manager about Robblee’s relationship to the room. The manager said that Robblee had stayed at the motel in another room until the day before. When Robblee returned to the motel, he stayed in a room that his sister, Jessie Guyette, had rented in his absence.
A day or two later, Deputy Gill spoke with Guyette. She confirmed that she had rented the room for Robblee, who had no money. She took him food, but she did not stay with him—she gave the keys to the room to Robblee. Apparently, she knew that two others were staying in the room with Robblee, but she did not know who they were. Deputy Gill also talked with Regina Hawkins, who admitted that on September 19, 2006, she had used methamphetamine and heroin obtained from Robblee.
C. Felony Charges
On September 22, 2006, a criminal complaint was filed charging Robblee with manufacturing heroin, possessing heroin for sale and maintaining a place for selling heroin. (See §§ 11351, 11366, 11366.5, subd. (a).) He pled not guilty to all these offenses. After an October 2006 preliminary hearing, Robblee was held to answer on these charges.
Later in October 2006, an information was filed charging Robblee with possession of heroin for sale, maintaining a place for selling heroin, and possession of cocaine, methamphetamine and drug paraphernalia. (See §§ 11350, subd. (a), 11351, 11364, 11366, 11377, subd. (a).) On the heroin possession charge, the information also alleged that in August 2004, he had suffered a prior conviction for drug manufacturing. (See §§ 11370.2, subd. (a), 11379.6, subd. (a).) He pled not guilty to all charges.
Robblee’s motion to suppress physical evidence and statements resulting from the September 2006 search was denied after hearing. (Pen. Code, § 1538.5.) Based on this ruling, in December 2006, Robblee pled guilty to possession of heroin for sale. (§ 11351.) The other four charges were dismissed on the People’s motion. Robblee agreed to serve a sentence of one year in state prison for this offense—one-third the middle term, to be served consecutive to the prison term he received in the probation revocation matter. He was sentenced accordingly on December 27, 2006.
D. Probation Revocation
In addition to facing new charges based inter alia on the September 2006 incident, Robblee was arrested for violating the terms of his 2004 grant of probation. A notice of probation violation alleged his September 2006 arrest for drug charges as grounds for the recommendation that Robblee be sentenced to state prison for the underlying charge. His probation was summarily revoked. In October 2006, the probation revocation matter was continued until the proceedings on the new charges were completed.
Once the suppression motion was denied, Robblee admitted the violation of probation. He was sentenced to five years in state prison for the underlying drug manufacturing conviction. He was also ordered to pay a $1,000 restitution fine and a $1,000 parole revocation fine. (See Pen. Code, §§ 1202.4, subd. (b)(1), 1202.45; see also fns. 11, 14, post.)
II. MOTION TO SUPPRESS
A. Facts
Robblee contends that the trial court erred in failing to suppress evidence taken in violation of his Fourth Amendment rights. He reasons that the question of whether Deputy Gill had a reasonable suspicion to detain him is irrelevant—that the question to be resolved is whether a warrantless entry into his motel room violated his constitutional right to be free of unreasonable searches and seizures. Robblee argues that cotenant Burriesci’s consent did not justify this entry and his subsequent detention, for two reasons—because Burriesci did not give true consent to enter, but merely acquiesced in the face of Deputy Gill’s show of authority, and because Burriesci lacked the authority to consent for Robblee. Thus, he reasons that the trial court committed reversible error when it denied his motion to suppress the illegally obtained physical evidence and his statements to law enforcement officials. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13; § 1538.5.)
We apply federal constitutional standards even when analyzing whether a state law violation of search and seizure rights has occurred. (See People v. Robles (2000) 23 Cal.4th 789, 794.)
In the trial court, Robblee moved to suppress all physical evidence obtained and all statements he made during the September 2006 search conducted by the United States Marshall and the State Parole Office. (Pen. Code, § 1538.5.) One issue raised in the suppression motion was whether the warrantless search and entry into Robblee’s motel room was proper. The People’s opposition papers focused on the question of whether there was a lawful detention, but did not respond to the issue of whether the entry was proper.
The trial court conducted a November 2006 hearing on the motion to suppress evidence seized from Robblee’s motel room. Deputy Gill offered this testimony at that hearing. He had received information from an arrestee that someone named Lee Roy was selling narcotics from a room at the Town House Motel. The arrestee believed that the seller was either on parole or on probation. Deputy Gill spoke with the motel manager, learning that a man named Lee Roy was staying in room 22, which was registered to a woman named Guyette. Because he did not know Lee Roy’s surname, Deputy Gill was unable to confirm if he was on probation or parole.
Accompanied by Parole Agents Woffinden and Haws, the deputy knocked on the door of room 22. At the time, Deputy Gill was not in uniform, but his badge was probably visible. The deputy was armed with a weapon, but none of the three law enforcement officials displayed one.
The record contains no evidence indicating whether the encounter occurred during the day or at night.
A man opened the door of room 22 a few inches and Deputy Gill identified simply himself as a police officer. Agents Woffinden and Haws were nearby, but probably not visible to the man at the door when it was first opened—they were likely positioned out of his line of sight. The man who answered the door did not speak—within seconds of Deputy Gill’s identification of himself as a police officer, he simply opened the door more widely and stepped back out of the way.
With the door open, the deputy saw a man and a woman inside the room. Ten feet away from the door, a man sat on a bed with a cell phone to his ear. Deputy Gill stepped across the threshold into the doorway, asking the man on the bed if he was named Lee Roy. Robblee acknowledged that he was. Deputy Gill asked if he was on probation or parole—Robblee, still seated on the bed, said “Yes” and offered the deputy his identification. Deputy Gill crossed the room to obtain it.
Deputy Gill testified that as he entered, he believed that Agent Woffinden was probably right behind him at the doorway.
Dennis Burriesci, the man who opened the door, acknowledged that he was on parole when the deputy asked. Deputy Gill obtained his identification and that of the woman in the room. He left the room and went to his car. By radio, the deputy asked Eureka police to run a check on all three individuals for warrants and to check their probation and parole status. Eureka police told Deputy Gill that Robblee was on probation, subject to a general search condition.
Deputy Gill returned to room 22 less than five minutes after he had left. Robblee was still seated on the bed; the parole agents were inside the room near the door. Deputy Gill stepped into the room and approached Robblee to speak with him. As he came to the far side of the bed, the deputy saw narcotics and packaging materials on the floor. Robblee was handcuffed and detained at that point. He was placed in the deputy’s car to remove him from the room during the search.
After the presentation of evidence, Robblee argued that Deputy Gill entered his room after receiving questionable information from an unreliable source. He focused on the moment when the deputy crossed the threshold into the motel room, asserting that this entry was made with a show of police authority and without a warrant in violation of his Fourth Amendment rights. Robblee reasoned that a reasonable person would not have felt free to leave the room, both because of the police presence and because an officer was blocking the door. Once the police had his identification, Robblee was not free to leave without it. He argued that Deputy Gill made an unjustified warrantless entry and detention.
The trial court asked defense counsel whether the problem stemmed from Deputy Gill’s step across the threshold of the motel room. It asked whether defense counsel believed that the deputy would have been within his rights to stand outside the door and inquired whether Lee Roy was inside. Robblee’s counsel conceded that he would have, because his client would have been free to say yes or no. The People argued that this threshold argument was irrelevant—that when Burriesci opened the door and stepped back from it, he made an implicit invitation to enter, countering any suggestion that the entry was made involuntarily under a show of authority. The trial court took the motion under submission.
Ultimately, the trial court denied Robblee’s motion to suppress. It found that a credible informant with a motive to tell the truth told Deputy Gill that he believed that Robblee was on parole or probation. When asked, Robblee admitted that he was on probation or parole. Thus, the trial court found that Deputy Gill had legally detained Robblee based on a reasonable suspicion, allowing further investigation of the matter. Based on the denial of his suppression motion, Robblee pled guilty to a new charge of possession for sale and admitted violating the terms of his earlier grant of probation.
A criminal defendant who pleads guilty may appeal to challenge the denial of a suppression motion. (Pen. Code, § 1538.5, subd. (m).)
B. Standard of Review
On appeal from the denial of a motion to suppress, we review the evidence in the light most favorable to the trial court’s ruling, adopting all express and implied findings of fact that are supported by substantial evidence. Based on those facts, we make an independent determination whether they support the trial court’s legal conclusion that the search was reasonable under the Fourth Amendment. (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198; see People v. Jenkins (2004) 119 Cal.App.4th 368, 372 (Jenkins).) The prosecution bears the burden of proof that a warrantless entry was reasonable. (See People v. Williams (1999) 20 Cal.4th 119, 127 [search]; People v. Hoeninghaus, supra, 120 Cal.App.4th at pp. 1197-1198; Jenkins, supra, 119 Cal.App.4th at p. 372.)
C. Propriety of Entry
1. Voluntariness of Consent
Although the trial court ruled on the detention issue, it did not expressly rule on the question of whether Deputy Gill’s initial warrantless entry into the motel room—his step across the threshold from the exterior doorway—was proper. Even if Robblee’s subsequent detention was lawful, the deputy’s entry into the motel room must also have been proper in order for Deputy Gill to be in a place from which he could properly detain Robblee. Thus, the trial court impliedly found that the entry that preceded the detention was also proper. On appeal, Robblee’s claim of error turns on whether the deputy’s initial entry was proper.
For purpose of the entry into the room, the reliability of any tip that precipitated the encounter becomes irrelevant if the entry was justified by consent. (See People v. Rivera (2007) 41 Cal.4th 304, 308-311 & fn. 1 (Rivera).) Thus, the proper inquiry is not whether Deputy Gill had a reasonable suspicion that Robblee had committed a crime, but whether the entry was consensual under the totality of the circumstances. (See Jenkins, supra, 119 Cal.App.4th at p. 374.)
The Fourth Amendment prohibits the warrantless entry of a person’s home, whether to make an arrest or to conduct a search. (Rivera, supra,41 Cal.4th at p. 311;see Illinois v. Rodriguez (1990) 497 U.S. 177, 181 [search case] (Rodriguez); Payton v. New York (1980) 445 U.S. 573, 590.) Absent exigent circumstances, the threshold of a home may not reasonably be crossed without a warrant. (Payton v. New York, supra, 445 U.S. at p. 590.) Motel guests are entitled to the same Fourth Amendment protections as homeowners. (Stoner v. California (1964) 376 U.S. 483, 490; People v. Bennett (1998) 17 Cal.4th 373, 384; Jenkins, supra, 119 Cal.App.4th at pp. 373-374.) Thus, when Deputy Gill entered the motel room by stepping across the threshold, he had to have a warrant or a justification for not having one in order to be lawfully in the place where he questioned Robblee, detained him briefly while verifying that he was subject to a search condition of probation, and then searched the motel room.
The People argue that when Dennis Burriesci opened the door wide and stepped back after the deputy knocked and identified himself, he gave his implied consent for Deputy Gill to enter the motel room. The Fourth Amendment prohibition against the warrantless entry of a person’s home does not apply if law enforcement officials obtain voluntary consent to enter. (Rivera, supra, 41 Cal.4th at p. 311;see Rodriguez, supra, 497 U.S. at p. 181 [search case]; Payton v. New York, supra, 445 U.S. at p. 590.) The sanctity of the home is not violated when police approach a residence, speak with the homeowner, and properly obtain consent to enter. (See Rivera, supra, 41 Cal.4th at p. 311 [consent to search].) In the case before us, the issue is whether there was consent to enter, rather than consent to search, but the same principles apply.
Robblee raises two objections to the People’s claim that Burriesci’s consent rendered the warrantless entry proper. First, he contends that Burriesci did not give his consent, but merely acquiesced in the face of an assertion of authority. Whether or not a law enforcement entry was consensual is determined based on the totality of the circumstances. (See Rivera, supra, 41 Cal.4th at p. 310 [encounter]; see also Florida v. Bostick (1991) 501 U.S. 429, 439; Jenkins, supra, 119 Cal.App.4th at p. 374.) The same test applies when the police enter a defendant’s motel room. (See Jenkins, supra, 119 Cal.App.4th at pp. 373-374 [encounter]; see also U.S. v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1108-1109, cert. den. sub nom. Cormier v. United States (2001) 531 U.S. 1174.)
In a “knock and talk” procedure, law enforcement officials knock on the door of a home, identify themselves as officers, ask to talk to the occupant about a criminal complaint, and request permission to search the house. (Rivera, supra, 41 Cal.4th at p. 310; Jenkins, supra, 119 Cal.App.4th at p. 372.) Even without a reasonable suspicion that a person has committed a crime, a peace officer may openly and peaceably, during daylight hours, walk up the steps and knock on the front door of any person’s home with the honest intent of asking a question of the occupant. (Rivera, supra, 41 Cal.4th at pp. 309-310; Jenkins, supra, 119 Cal.App.4th at pp. 372, 374; see U.S. v. Cormier, supra, 220 F.3d at p. 1109.) Such a request to enter and search necessarily implies that permission to do so may be withheld. (Rivera, supra, 41 Cal.4th at p. 311; People v. Ledesma (2006) 39 Cal.4th 641, 704, cert. den. sub nom. Ledesma v. California (Apr. 2, 2007, No. 06-8883) ___ U.S. ___ [127 S.Ct. 1910].) If an occupant agrees to allow the police officer to search the premises, then the Fourth Amendment is not implicated. (Rivera, supra, 41 Cal.4th at p. 309.)
The determination whether consent is given voluntarily or in acquiescence to authority is made based on the totality of the circumstances. (See, e.g., U.S. v. Jerez (7th Cir. 1997) 108 F.3d 684, 689.) Consent is voluntary as long as the officers do not convey a message that compliance with their requests is required. (See Florida v. Bostick, supra, 501 U.S. at pp. 435, 437 [search case]; Jenkins, supra, 119 Cal.App.4th at p. 373 [same].) Thus, the key determination is whether Burriesci felt free to refuse to cooperate with the police. (See Florida v. Bostick, supra, 501 U.S. at pp. 436-437; Jenkins, supra, 119 Cal.App.4th at p. 373 [motel room]; see also U.S. v. Jerez, supra, 108 F.3d at p. 689 [same].) If, considering the totality of the circumstances, a reasonable person would have felt free to decline the police requests, the consent was valid and the Fourth Amendment was not implicated. (See U.S. v. Jerez, supra, 108 F.3d at p. 689 [detention case].)
Although Robblee argues otherwise, this is not a case in which Burriesci acquiesced to a demand for entry made under color of law. (See Johnson v. United States (1948) 333 U.S. 10, 12-15.) The case before us is a far cry from those cases which found that consent was given in acquiescence to authority. For example, if officers knock on a motel room door late at night, knocking persistently for several minutes demanding that the occupants open the door, while ignoring the refusal to admit them, the subsequent entry would not be consensual. (See Jenkins, supra, 119 Cal.App.4th at p. 374; see also U.S. v. Jerez, supra, 108 F.3d at pp. 691-692 [objective assessment of officer conduct conveyed message that compliance was required].)
None of these indicia of authority were present in this case. There was nothing extraordinary about Deputy Gill’s knocking at the door. There was no refusal to respond to his knock, nor any refusal to admit him. There is no evidence that he actually asked to be admitted into the motel room. When there was no police demand to open the door and no evidence of any persistent attempts to gain access to the motel room, there is no evidence to indicate that any entry gained was in acquiescence to authority. (See Jenkins, supra, 119 Cal.App.4th at pp. 372-373; see also U.S. v. Cormier, supra, 220 F.3d at p. 1109.)
None of the other undisputed facts in the trial court record tend to support a finding of Burriesci’s lack of voluntary consent to enter. Deputy Gill was armed, but none of the officers were uniformed and no one drew or displayed any weapons. Thus, none of these potentially coercive factors are present in our case. (See, e.g., People v. Harrington (1970) 2 Cal.3d 991, 997, cert. den. sub nom. Harrington v. California (1971) 402 U.S. 923.) Nothing about his manner suggested that he would enter regardless of Burriesci’s consent—another factor tending in favor of a finding of voluntary rather than coerced consent to enter. (See, e.g., People v. James (1977) 19 Cal.3d 99, 113.)
When Deputy Gill knocked on the door, displayed his badge and identified himself by saying nothing more than the word “police,” a reasonable person might have engaged the deputy in conversation about his purpose. Instead, without uttering a word, Burriesci simply stepped back and opened the door wider. These facts suggest only one reasonable interpretation—that Burriesci gave his implied consent to allow the deputy entry into the motel room to discuss whatever business had brought him to that place. (See People v. Martino (1985) 166 Cal.App.3d 777, 791.) On these facts, we are satisfied that the People met their burden of proving that Burriesci gave his voluntary consent to Deputy Gill’s entry. (See People v. Williams, supra, 20 Cal.4th at p. 127.)
Once he made his initial entry into the room by crossing the threshold, Deputy Gill remained at the doorway until Robblee himself impliedly invited Deputy Gill to enter the room further by offering his identification while remaining seated on the bed about 10 feet away from the door.
2. Third Party Consent
Robblee also contends that Burriesci lacked the authority to consent to Deputy Gill’s entry of his motel room. Voluntary consent to enter a residence may be obtained from a third party who possessed common authority over the premises. (Rivera, supra, 41 Cal.4th at p. 311;see Rodriguez, supra, 497 U.S. at p. 181 [search case].) Common authority rests on the mutual use of property by persons having joint access or control over it. (Rodriguez, supra, 497 U.S. at p. 181; United States v. Matlock (1974) 415 U.S. 164, 169-170 fn. 4.) When more than one person has equal right to use or occupy a premises, any one may give consent to entry. Other co-occupants assume the risk that one of them might permit common areas to be entered. (See United States v. Matlock, supra, 415 U.S. at pp. 169-170 fn. 4, 171 fn. 7 [consent to search]; Rivera, supra, 41 Cal.4th at pp. 308-309 fn. 1.)
Robblee argues that nothing in the record indicates that law enforcement officials had any basis to believe that Burriesci had the authority to give consent to enter the motel room. We disagree. The evidence offered at the October 2006 preliminary hearing suggests that, in fact, Burriesci was one of three cotenants of room 22 who possessed common authority over the premises. (See Rivera, supra, 41 Cal.4th at p. 311;see also Rodriguez, supra, 497 U.S. at p. 181.) This evidence demonstrates that he had joint control over the premises, giving him actual authority to allow another entry into it. (See Rodriguez, supra, 497 U.S. at p. 181; United States v. Matlock, supra, 415 U.S. at pp. 169-170 fn. 4, 171 fn. 7.)
At the November 2006 suppression hearing, there was no evidence relating to the issue of whether or not Burriesci was actually a tenant of the motel room. However, the evidence that was before the trial court at the suppression motion hearing makes it clear that Burriesci had apparent authority to give Deputy Gill consent to enter the room. He appeared to have this authority when he opened the door to Gill’s knock and, once the deputy identified himself as a police officer, opened the door further and stepped back to make way for the deputy to cross the threshold into the interior doorway of the room. (See People v. Ledesma, supra, 39 Cal.4th at p. 703.) When Burriesci did so, there was no evidence that Robblee raised any objection to his authority. (See, e.g., Georgia v. Randolph (2006) 547 U.S. 103, 106, 113-114 [immediate objection to co-occupant’s permission to enter renders subsequent warrantless search unreasonable; objecting occupant entitled to suppress evidence].) Applying the objective standard, it was reasonable for Deputy Gill to conclude that Burriesci had apparent authority to consent to enter the motel room. (See Rodriguez, supra, 497 U.S. at pp. 185-188; People v. Ledesma, supra, 39 Cal.4th at pp. 703-704; see also Georgia v. Randolph, supra, 547 U.S. at pp. 109, 111; People v. Jenkins (2000) 22 Cal.4th900, 977-978, cert. den. sub nom. Jenkins v. California (2001) 531 U.S. 1155.) Thus, regardless of whether Burriesci had actual authority to consent to entry or only apparent authority to do so, the deputy’s entry was lawful.
Having concluded that Deputy Gill’s initial entry into the room was proper because it was made with Burriesci’s consent, the subsequent brief detention and questioning of Robblee was proper in order to determine the detainee’s probation status. Once Deputy Gill had verified that Robblee was the man for whom he was looking, that this man was on probation, and that he had agreed to a search condition of probation, the deputy had the right to conduct a probation search. Thus, the trial court properly denied Robblee’s motion to suppress evidence.
III. FINES
In the part of his appeal stemming from his sentence to state prison for the 2004 drug manufacturing conviction after he violated the terms of his grant of probation, Robblee challenges two fines imposed by the trial court when he was sentenced to state prison in 2006 after his 2004 grant of probation was revoked. First, he contends that the trial court’s imposition of a $1,000 restitution fine in 2006 was improper, because it exceeded the $200 restitution fine imposed at the time of his 2004 conviction and grant of probation. (See § 1202.4, subd. (b)(1).) In 2004, at the time that Robblee was granted a four-year term of probation, he was ordered to pay a $200 restitution fine. In 2006, when the trial court sentenced him to five years in state prison for the 2004 drug manufacturing conviction for which he was originally granted probation, it purported to impose a restitution fine of $1,000 instead. (See ibid.)
Robblee was also sentenced in 2006 to a one-year consecutive term for the 2006 drug possession conviction. The trial court imposed $200 each in restitution and parole revocation fines for this conviction. (See §§ 1202.4, subd. (b)(1), 1202.45.) He does not challenge these fines on appeal.
State law requires that whenever a person is convicted of a crime, the court must impose a restitution fine of at least $200. (§ 1202.4, subd. (b)(1).) Amendments to this provision since Robblee’s January 31, 2004 offense, his May 17, 2004 guilty plea and his August 10, 2004 grant of probation do not affect that part of section 1202.4 that is of concern to us in this appeal. (See Stats. 2000, ch. 1016, § 9.5 [in effect at time of Robblee’s guilty plea and grant of probation]; Stats. 2004, ch. 223, § 2, eff. Aug. 16, 2004; Stats. 2005, ch. 238, § 1; Stats. 2005, ch. 240, § 10.5 [current law].)
Robblee argues that the 2006 trial court had no authority to impose a restitution fine in excess of that imposed in 2004. The People concede that the restitution fine imposed in 2006 must be reduced to the $200 amount imposed in 2004. We agree that the judgment must be so modified. The triggering event for imposition of a restitution fine is the conviction. The restitution fine survives the term of probation, remaining in force when a defendant is sentenced to prison after violating a grant of probation. (People v. Arata (2004) 118 Cal.App.4th 195, 201-203; see People v. Chambers, supra, 65 Cal.App.4th at pp. 821-823 [based on prior statute].) As the first restitution fine imposed in 2004 remains in effect, the trial court had no authority to impose the second one in 2006. (See People v. Arata, supra, 118 Cal.App.4th at pp. 202-203; see also People v. Chambers, supra, 65 Cal.App.4th at p. 823.) We must reduce the restitution fine from $1,000 to $200.
At the 2006 sentencing proceeding, Robblee did not object to the amount of the restitution fine imposed. Even so, we may correct a sentence imposed in excess of a trial court’s statutory authority. (People v. Smith (2001) 24 Cal.4th 849, 853; People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
Robblee also contends that the trial court erred when it imposed a $1,000 parole revocation fine at the 2006 sentencing hearing when he was sentenced to prison for the 2004 drug manufacturing conviction after his probation was revoked. (See § 1202.45.) The People concede that this fine cannot exceed the $200 fine imposed in 2004 as a restitution fine. Again, we agree. State law requires that the parole revocation fine be assessed in the same amount as that imposed for the restitution fine. (Ibid.; People v. Arata, supra, 118 Cal.App.4th at p. 203; see § 1202.4, subd. (b.) As the restitution fine was $200, the parole revocation fine must be reduced from $1,000 to $200, as well.
Robblee did not object to the excessive amount of this fine at the 2006 sentencing proceedings, either. However, the imposition of a parole revocation fine in an amount in excess of statutory authority is an unauthorized sentence that can be corrected at any time, even if the defendant failed to raise the issue in the trial court. (People v. Andrade (2002) 100 Cal.App.4th 351, 354.)
“In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the [same] time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4” (§ 1202.45.) Amendments to section 1202.45 since the time of Robblee’s 2004 offense and guilty plea, and his August 10, 2004 grant of probation do not affect the part of this provision that concerns us in this appeal. (See Stats. 1995, ch. 313, § 6, p. 1758 [in effect on date of offense and conviction]; Stats. 2004, ch. 223, § 4, eff. Aug. 16, 2004 [current law].)
IV. DISPOSITION
The judgment is modified to reduce both the $1,000 restitution fine and the $1,000 parole revocation fine to fines of $200 each. The trial court shall amend the abstract of judgment accordingly. As modified, the judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.
All subsequent statutory references are to the Penal Code.