Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF156685A. Gary L. Paden, Judge.
Allison H. Ting, 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, Assistant Attorney General, Stephen G. Herndon and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
The facts are not at issue on appeal.
On February 9, 2006, in case No. VCF156685A, Noah Shey Robinson (appellant) pled no contest to one count of possession of cocaine for sale (Health & Saf. Code, § 11351) and he admitted being personally armed with a firearm (Pen. Code, § 12022, subd. (c)). On February 28, 2006, the trial court sentenced appellant to five years in prison, suspended execution of sentence, and placed him on five years’ formal probation. The court imposed a $250 restitution fine pursuant to section 1202.4 and a suspended $250 probation revocation restitution fine pursuant to section 1202.44.
All further undesignated statutory references are to the Penal Code.
On March 29, 2006, in case No. VCF161063, appellant pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). He also admitted violating probation in case No. VCF156685A.
On November 7, 2006, in a consolidated sentencing proceeding, the trial court revoked and reinstated probation in case No. VCF156685A, with all terms and conditions to remain in effect. In case No. VCF161063, the trial court sentenced appellant to prison for five years, suspended execution of sentence, and placed him on five years’ probation.
On July 20, 2007, appellant appeared in a new case, No. VCF185470, and pled no contest to transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) with a personal arming enhancement (§ 12022, subd. (c)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He admitted having a conviction for a prior narcotics offense (Health & Saf. Code, § 11370.2, subd. (a)). Appellant also admitted violating probation in case Nos. VCF156685A and VCF161063. This appeal is from the judgment in case No. VCF156685A.
Appellant has filed a separate appeal (F056115) involving Tulare Superior Court case No. VCF185470. Appellant’s unopposed request for judicial notice of the record in F056115 when we consider his current appeal is granted. (Evid. Code, § 452, subd. (d)(1).)
The trial court indicated an eight-year sentence for the combined cases, Nos. VCF185470, VCF161063, and VCF156685A, and ordered appellant to appear for sentencing on September 12, 2007. The court indicated that the sentence would increase to 11 years if appellant failed to appear or if he incurred a new arrest. The prosecutor characterized the proceedings as a “Cruz waiver.”
People v. Cruz (1988) 44 Cal.3d 1247.
On September 12, 2007, appellant failed to appear, and a bench warrant was issued. A handwritten entry in the minute order states, “Def is in jail in Kings County.” The minute order was filed under case No. VCF156685A and did not mention either of the other two case numbers.
On January 11, 2008, the trial court ordered probation revoked in case Nos. VCF156685A and VCF161063, and then sentenced appellant in the three cases. In No. VCF185470, it sentenced appellant to 11 years in state prison, consisting of the four-year midterm for transportation of cocaine, a consecutive four-year personal arming enhancement, and a consecutive three-year prior narcotics conviction enhancement. The court imposed a concurrent term of four years in case No. VCF156685A, and a concurrent term of four years in case No. VCF161063. In addition, in case No. VCF156685A, the court imposed a $500 restitution fine (§ 1202.4, subd. (b)), stayed a $500 parole revocation fine (§ 1202.45), and ordered the previously suspended $250 probation revocation fine (§ 1202.44) to be paid in the amount of $500.
DISCUSSION
Appellant’s sole contention on appeal is that the trial court violated People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers) by imposing the $500 restitution fines under sections 1202.4, subdivision (b), 1202.44, and 1202.45 in case No. VCF156685A. Respondent concedes the issue, and we accept this concession.
Section 1202.4, subdivision (b), provides: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” Subdivision (m) of section 1202.4 provides, in relevant part, “In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation.”
Section 1202.44 provides:
“In every case in which a person is convicted of a crime and a … sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount …. This additional probation revocation restitution fine shall become effective upon the revocation of probation … and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record.…”
Section 1202.45 provides that, in the event that a defendant is sentenced to prison, a parole revocation fine shall be imposed “in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45.)
In Chambers, the defendant entered a no contest plea to first degree burglary. The trial court granted probation and, as a condition of probation, imposed a $200 section 1202.4, subdivision (b) restitution fine. The trial court later revoked probation and sentenced the defendant to state prison, while imposing a $500 restitution fine pursuant to the same section. (Chambers, supra, 65 Cal.App.4th at p. 821.) The court in Chambers determined that the $500 restitution fine was unauthorized, declaring that there was “no statutory authority justifying the second restitution fine because … the first restitution fine remained in force despite the revocation of probation.” (Id. at p. 823; see also People v. Arata (2004) 118 Cal.App.4th 195, 201-203 (Arata) [trial court erred when it imposed second $800 § 1202.4 restitution fine when it had already imposed $600 restitution fine at the time defendant was granted probation; second restitution fine stricken from judgment].)
In this case, the trial court imposed a $250 restitution fine pursuant to section 1202.4, subdivision (b), when appellant was granted probation. Following revocation of appellant’s probation, the court, although not entirely clear from the record, either imposed an additional $500 restitution fine or mistakenly referred to the previous $250 restitution fine in the incorrect amount. But the distinction is not important here. As was the case in Chambers and Arata, because the first $250 restitution fine survived the revocation of probation, the $500 restitution fine amount was unauthorized and must be stricken from the judgment. The section 1202.4, subdivision (b) fine must be reduced to $250.
Finally, the probation and parole revocation fines imposed pursuant to sections 1202.44 and 1202.45 must each reflect the amount of the section 1202.4 restitution fines. Therefore, the $500 fines under both those sections must be stricken and reduced to $250 each. (See People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435 [imposition of previously stayed § 1202.44 probation revocation fine is mandatory upon revocation of probation with sentence to state prison].)
DISPOSITION
The judgment in case No. VCF156685A is modified as follows: (1) the $500 section 1202.4, subdivision (b), restitution fine imposed on January 11, 2008, is stricken from the judgment and the $250 restitution fine imposed on February 28, 2006, remains in force; (2) the $500 section 1202.44 probation revocation fine imposed on January 11, 2008, is stricken from the judgment and the $250 probation revocation fine imposed on February 28, 2006, remains in force; and (3) the $500 section 1202.45 parole revocation fine imposed on January 11, 2008, is reduced to $250. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation.
WE CONCUR: CORNELL, Acting P.J., HILL, J.