Opinion
C043261.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES SCOTT SAIDE, Defendant and Appellant.
Defendant Charles Scott Saide pleaded guilty to continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5.) The trial court sentenced defendant to state prison for 16 years but suspended execution of the sentence and granted probation. As one of the conditions of probation, the court imposed a $1,000 restitution fine and a 10 percent administrative fee. (See § 1202.4, subd. (b).)
Further undesignated section references are to the Penal Code.
The trial court later revoked defendants probation and ordered him to serve the 16-year prison sentence. The court also imposed a $3,200 restitution fine and a $3,200 suspended parole revocation fine. (§§ 1202.4, subd. (b), 1202.45.) These fines are reflected in the abstract of judgment, but the earlier fine is not.
On appeal, defendant claims the $3,200 restitution fine was unauthorized and that the suspended parole revocation fine must be reduced to equal the $1,000 restitution fine initially imposed. Defendant is correct, as the People concede.
The original $1,000 restitution fine survived revocation of defendants probation, and the trial court was without authority to impose another fine upon sentencing defendant to state prison. (See People v. Chambers (1998) 65 Cal.App.4th 819, 822-823; see also § 1202.4, subd. (b).) The issue was not waived by defendants failure to object in the trial court since imposition of the fine resulted in an unauthorized sentence. (Cf. People v. Chambers, supra, 65 Cal.App.4th at p. 823.) Further, the suspended parole revocation fine under section 1202.45 must be reduced so that it equals the $1,000 restitution fine. (Cf. People v. Downey (2000) 82 Cal.App.4th 899, 921.)
Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked."
DISPOSITION
The judgment is modified by striking the $3,200 restitution fine imposed when the trial court sentenced defendant to state prison. The $1,000 restitution fine originally imposed as a condition of probation remains in force, and the suspended parole revocation fine is reduced to $1,000. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver a certified copy to the Department of Corrections.
We concur: DAVIS, J., and RAYE, J.