Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR230617
RUVOLO, P. J.
I.
Factual and Procedural Backgrounds
On August 8, 2006, pursuant to a plea agreement, appellant Robert Charles Shelly pleaded no contest to one count of failing to update his sex offender registration annually (Pen. Code, § 290, subd. (a)(1)(D)). On September 5, 2006, the court suspended imposition of sentence and placed appellant on three years of formal probation with a condition that he serve 365 days in county jail. Among other fines and fees, the court ordered that appellant pay a $200 victim restitution fine (§ 1202.4) and ordered a $200 probation revocation fine (§ 1202.44) that was stayed unless probation was revoked.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On March 11, 2008, appellant was found to be in violation of the term of his probation that he not contact or be in the presence of children under the age of 18. On April 1, 2008, the court reinstated his probation and modified it to continue for one additional year, until September 5, 2010. The court also ordered appellant to serve a 114-day jail term with credit for time served.
Then, on July 15, 2010, a jury found appellant guilty of driving while under the influence of alcohol under Vehicle Code section 23152, subdivisions (a) and (b), which the court subsequently found to be a violation of appellant’s probation.
On August 12, 2010, the court denied appellant’s request to reinstate probation, and imposed a two-year prison sentence for appellant’s probation violation. After stating that the previous victim restitution fine of $200 had been imposed as a condition of probation, the court imposed a $400 victim restitution fine (§ 1202.4, subd. (b)) and a parole revocation fine (§ 1202.45) in the same amount. The court also imposed a six-month concurrent prison term for appellant’s driving under the influence conviction.
On August 16, 2010, appellant filed a timely notice of appeal. On appeal, appellant’s only contention is that the trial court exceeded its authority when it imposed the second $400 restitution fine. The Attorney General concedes the issue, and we agree.
II.
Discussion
The imposition of a restitution fine at the time of conviction and granting of probation survives a subsequent probation revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823 (Chambers); People v. Downey (2000) 82 Cal.App.4th 899, 921.) In Chambers, the trial court first imposed a $200 restitution fine on the defendant as a probation condition for his conviction for first degree burglary. (Chambers, supra, at p. 821.) Subsequently, upon revocation of probation and commitment to state prison, the court imposed a $500 restitution fine. (Ibid.)
The Chambers court held that the latter fine must be stricken as unauthorized, and concluded: “Restitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. [Citation.]” (Chambers, supra, 65 Cal.App.4th at p. 822.)
Here, the trial court imposed a $200 restitution fine at the time of appellant's conviction and original grant of probation on September 5, 2006. Then, on August 12, 2010, the trial court revoked appellant’s probation and imposed an increased restitution fine of $400. As in Chambers, here the trial court lacked statutory authority to impose an additional or greater restitution fine because the restitution fine imposed at the time of appellant's conviction remained in force despite the later revocation of appellant's probation. (Chambers, supra, 65 Cal.App.4th at p. 823.)
Furthermore, pursuant to section 1202.45, the trial court should have imposed a parole revocation fine “in the same amount as that imposed” as a restitution fine. We may order the abstract of judgment amended to reflect the correct amount of the parole revocation fine. (People v. Smith (2001) 24 Cal.4th 849, 851-854.)
III.
Disposition
The judgment is modified by striking the $400 restitution fine imposed by the trial court, leaving in force the $200 restitution fine originally imposed under section 1202.4, subdivision (b), and reducing to $200 the parole revocation fine under section 1202.45. 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.
We concur: SEPULVEDA, J., RIVERA, J.