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People v. Saheed

Court of Appeal of California
Sep 3, 2008
C057120 (Cal. Ct. App. Sep. 3, 2008)

Opinion

C057120

9-3-2008

THE PEOPLE, Plaintiff and Respondent, v. ABDUL SAHEED, Defendant and Appellant.

Not to be Published


When defendant Abdul Saheed violated the terms of his probation, the learned trial court revoked his probation and sentenced him to five years and four months in state prison. On appeal, defendant contends the trial court erred in imposing a duplicate restitution fine (Pen. Code, § 1202.4; undesignated references are to the Penal Code) and a duplicate court security fee (§ 1465.8). We disagree and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 2005, defendant pled guilty in Placer County case No. 62048443 to first degree robbery (§ 211) in exchange for no immediate state prison time, nine months in county jail, and the possibility of alternative sentencing. The court placed defendant on formal probation for four years pursuant to specified terms and conditions and ordered that he serve 270 days in county jail, minus 20 days of presentence custody credit. Defendant was permitted to apply for alternative sentencing, but was ordered to report to the Placer County Jail on July 6, 2005, to begin serving his sentence in the event alternative sentencing could not be obtained. The court further ordered defendant to pay various fees and fines, including a $200 restitution fine (§ 1202.4, subd. (b)), a $200 probation revocation fine (§ 1202.44) stayed pending successful completion of probation, and a $20 court security fee (§ 1465.8).

On June 9, 2005, the probation department filed a petition for revocation of probation alleging defendant violated the terms and conditions of his probation by: (1) changing his residence without first obtaining permission, and (2) being arrested in San Mateo County, California for violating sections 273.5, 207, 245, 422, and 236. Defendants probation was summarily revoked pending a hearing on the petition.

A second petition to revoke probation was filed on January 4, 2006, alleging defendant violated probation by failing to report to Placer County Jail on July 6, 2005, as required. Again, defendants probation was summarily revoked pending a hearing on the petition.

On April 27, 2006, a first amended petition was filed combining the allegations in the two prior petitions and including an allegation that defendant had been convicted of violating section 273.5 in San Mateo County case No. SC059816.

Defendant admitted the allegations in the amended petition on January 17, 2007.

At the September 27, 2007, sentencing, the Placer County court resentenced defendant in the San Mateo County case to four years in state prison, and imposed a consecutive sentence of 16 months (one-third the middle term) in the Placer County case, for an aggregate sentence of five years and four months in state prison. The court imposed a $400 restitution fine (§ 1202.4, subd. (b)), a $400 parole revocation fine (§ 1202.45) stayed pending successful completion of parole, and a $20 court security fee (§ 1465.8) and noted defendant was subject to the "restitution orders" as set forth in the San Mateo County minute order.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the courts imposition of a "second restitution fine in the amount of $200" at the September 27, 2007, hearing was unauthorized and must therefore be stricken. The People agree. In our view, the abstract of judgment correctly sets forth the fees and fines properly imposed.

Section 1202.4, subdivision (b), requires imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.) Consequently, the imposition of a second, or duplicate, restitution fine upon revocation of a defendants probation is unauthorized. (Id. at p. 823.)

Here, when defendant was granted probation in Placer County in 2005, the court imposed matching fines of $200 pursuant to sections 1202.4 and 1202.44, the latter being stayed pending successful completion of probation. Once probation was revoked, defendant was obliged to pay the $200 probation revocation fine (§ 1202.44). The $200 fine imposed pursuant to section 1202.4 carried over until paid in full by defendant regardless of termination of probation.

Similarly, when defendant was sentenced in the San Mateo County case, that court imposed matching fines of $200 pursuant to sections 1202.4 and 1202.45, staying the latter pending successful completion of parole.

In pronouncing sentence following revocation of probation, the court arguably misspoke when it imposed "a restitution fine . . . in the amount of $400" pursuant to section 1202.4, subdivision (b), and "an additional restitution fine in the same amount as that that [sic] just imposed," stayed pending successful completion of parole pursuant to section 1202.45. It is likely the court intended simply to reiterate, rather than duplicate or add to, the collective restitution fines previously imposed in both cases. In any event, we need not take any action to correct or clarify the record in that regard given that the abstract of judgment correctly reflects imposition in each of the two cases of a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole revocation fine (§ 1202.45), and the Placer County minute order and the San Mateo County minute order are both consistent on that point as well. It is those documents upon which the parties responsible for executing the sentence and collecting the fees and fines will rely.

Defendant makes a similar argument with respect to the $20 security fee, urging that the court improperly duplicated its prior imposition of security fees at the time probation was granted, and that it did so twice—once with regard to the Placer County case and once with regard to the San Mateo County case. We disagree. Section 1465.8, subdivision (a), requires imposition of a $20 court security fee "on every conviction for a criminal offense . . . ." (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) That is, the imposition of the $20 security fee in each of the two cases was merely a reiteration by the court of the security fees previously imposed when probation was granted in the Placer County case and when sentence was imposed in the San Mateo County case, and is not duplicative of, or in addition to, the previously imposed fees. Again, the abstract of judgment correctly reflects that a $20 court security fee was imposed just once in each of the two cases pursuant to section 1465.8. No correction or clarification on our part is necessary.

DISPOSITION

The judgment is affirmed.

We concur:

NICHOLSON, J.

ROBIE, J. --------------- Notes: The San Mateo County court imposed an aggregate prison sentence of four years and ordered defendant to pay a $200 restitution fine (§ 1202.4), a $200 parole revocation fine (§ 1202.45) stayed pending successful completion of parole, and a $20 court security fee (§ 1465.8).


Summaries of

People v. Saheed

Court of Appeal of California
Sep 3, 2008
C057120 (Cal. Ct. App. Sep. 3, 2008)
Case details for

People v. Saheed

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ABDUL SAHEED, Defendant and…

Court:Court of Appeal of California

Date published: Sep 3, 2008

Citations

C057120 (Cal. Ct. App. Sep. 3, 2008)