Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. PCF118730B, Juliet L. Boccone, Judge.
William Davies and Deborah Prucha, 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, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Hill, J.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant pled no contest to one felony count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). The offenses occurred on November 10, 2003. Imposition of sentence was suspended, and appellant was placed on formal probation for three years, subject to conditions, including payment of a restitution fine of $200 (Pen. Code, § 1202.4, subd. (b), (m)). Appellant violated his probation twice; each time the court revoked, then reinstated, probation on the same terms and conditions. Appellant admitted a third violation of probation. His probation was reinstated and extended, the previous probation terms were vacated, and new terms and conditions were imposed, including an order to pay a restitution fine of $500 and an order to pay a probation revocation restitution fine of $500 (Pen. Code, § 1202.44), which was suspended pending successful completion of probation.
Appellant challenges the probation revocation restitution fine, asserting the statute authorizing that fine was not enacted until after his offense was committed and therefore it cannot be imposed as a punishment for his offense. He also challenges the restitution fine, contending that, having imposed a fine of $200 when probation was originally granted, the court could not impose a second restitution fine at the time probation was revoked and reinstated. He seeks to have the probation revocation restitution fine stricken and the restitution fine reduced to $200.
DISCUSSION
I. Probation Revocation Restitution Fine
When a person is convicted of a crime and placed on probation, the court must assess a probation revocation restitution fine in the same amount as the restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b); the fine becomes effective upon revocation of probation. (Pen. Code, § 1202.44.) Section 1202.44 was enacted in 2004, and became effective on August 16, 2004. (Stats. 2004, ch. 223, §§ 3, 8.) Appellant’s offenses occurred on November 10, 2003, prior to the effective date of section 1202.44. Appellant contends application of section 1202.44 to an offense that occurred before its effective date violates the prohibition against ex post facto laws. Respondent concedes the probation revocation restitution fine was imposed in error and should be stricken. We agree. Section 1202.44 cannot constitutionally be applied to conduct that occurred prior to its effective date. (Cf. People v. Callejas (2000) 85 Cal.App.4th 667, 676.) Accordingly, the probation revocation restitution fine should be stricken.
II. Restitution Fine
On January 12, 2004, after appellant entered a no contest plea, the court suspended imposition of sentence, placed appellant on formal probation, and ordered appellant to pay a restitution fine of $200 as a condition of probation. On March 26, 2007, after appellant’s third probation violation, the court reinstated and extended probation, vacated the previously imposed terms and conditions, and imposed different terms and conditions, including payment of a $500 restitution fine. Appellant challenges the increased restitution fine as an unauthorized sentence.
In People v. Chambers (1998) 65 Cal.App.4th 819, appellant pled no contest to the charge against him, and was placed on probation with a condition that he pay a $200 restitution fine. (Id. at p. 820.) The trial court subsequently revoked appellant’s probation, sentenced him to prison, and imposed a $500 restitution fine. On appeal, the court held the $500 restitution fine imposed on revocation of probation was unauthorized. (Id. at p. 821.) It concluded the initial restitution fine imposed as a condition of probation survived revocation of probation, both because there was no statutory provision for imposing a restitution fine upon revocation of probation rather than upon conviction, and because the statutes contemplated that the fine would survive the probationary term. (Id. at p. 822.) Because the first restitution fine remained in force despite the revocation of probation, the second fine was unauthorized and had to be stricken. (Id. at p. 823.)
In this case, the increased restitution fine was not imposed when probation was revoked and terminated and appellant was sentenced. It was imposed when probation was revoked and reinstated on new terms and conditions.
“In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders … a condition of probation.” (Pen. Code, § 1202.4, subd. (m).) In the event of a violation of probation, “the court may modify, revoke, or terminate the probation of the probationer.” (Pen. Code, § 1203.2, subd. (b); see also Pen. Code, § 1203.1, subd. (j.) “[T]he court has jurisdiction, upon revocation of probation, to place the defendant upon a new probation, with new conditions.” (In re Bine (1957) 47 Cal.2d 814, 817.) “Probation is an act of clemency and may be withdrawn if the privilege is abused.… In such case the court is specifically authorized to modify and change any and all of the terms and conditions of probation.” (Ibid.)
On February 26, 2007, appellant admitted he violated his probation by committing a new offense. On March 26, 2007, the court reinstated probation, vacated the terms previously imposed, and imposed new terms and conditions, including payment of a restitution fine of $500. Modification of the terms and conditions of appellant’s probation, including the restitution fine, on appellant’s admission that he violated probation was authorized by statute. Thus, the increased restitution fine was not an unauthorized sentence that must be vacated by this court.
In his reply, appellant asserts that he was required to agree in writing to the terms of his probation, and that he did not agree in writing to the $500 restitution fine; he also contends there is no indication in the record that the court “made a conscious choice to increase the amount of the restitution fine from $200 to $500.” Appellant cites no authority for any requirement that he agree in writing to the terms and conditions of his probation. Appellant’s failure to object in the trial court to imposition of the increased restitution fine or to the procedure by which it was imposed precludes him from contesting the fine on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; People v. Brach (2002) 95 Cal.App.4th 571, 577.) Appellant has not established error in the imposition of the restitution fine.
DISPOSITION
The order granting probation is modified to eliminate the probation revocation restitution fine. As so modified, the order is affirmed.