Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super.Ct.Nos. SS033244A & SS040727A
Duffy, J.
As a result of incidents separated by approximately two months, Defendant Kevin Sean Stoll pleaded no contest to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and guilty to one count of attempted second degree robbery (Pen. Code, §§ 664/211). The court in March 2004 sentenced defendant to an aggregate prison term of three years and eight months, but suspended execution on the condition that defendant comply with all terms of probation for five years. Probation conditions included that defendant serve 80 days and 360 days in the county jail for the attempted robbery and vehicle theft convictions, respectively. After satisfying those conditions, defendant violated probation by failing a drug test. In November 2006, his probation was revoked and the aggregate prison sentence previously suspended was imposed.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant claims on appeal that the court erred in November 2006 by refusing to award him 189 days of “dead time” custody credits against the three-year sentence for the attempted robbery conviction. Pursuant to section 2900.5, the court applied a total of 429 days’ credit to the eight-month sentence for the vehicle theft conviction and after the entire sentence had been credited, despite defendant’s objection, refused to apply the remaining 189 days as a credit against the three-year sentence. Defendant also contends that the court, at the time it revoked probation, erred by imposing new restitution fines (§ 1202.4) and by assessing a parole revocation restitution fine (§ 1202.45) in the amount of $600, rather than the $200 amount allowable under the circumstances.
We conclude that the court did not err by failing to apply the “dead time” custody credits to the three-year sentence imposed on the attempted robbery conviction. We hold further that the court erred in its imposition of the restitution fines in November 2006 and that it imposed a parole revocation restitution fine in case numberSS040727A that, under the circumstances, exceeded the amount permitted under section 1202.45. We therefore will order stricken the restitution fines of $200 and $600 imposed in November 2006 in case numbers SS033244A andSS040727A, respectively. (The judgment shall reflect the restitution fines of $200 imposed in each case in March 2004.) We will order further that the parole revocation restitution fine imposed in case number SS040727A be modified to $200. As modified, we will affirm the judgment.
Because this appeal concerns only two sentencing matters, the facts underlying the convictions have little bearing on the issues before us. We therefore present an abbreviated summary of those facts as taken from the probation report.
I. Vehicle Theft Case (No. SS033244A)
On November 3, 2003, Derek Brown reported to the Monterey Police Department that his 1994 Saturn had been stolen. That evening, the Seaside Police stopped defendant in the Saturn for driving without a front license plate. After a license check revealed that the car had been reported stolen, defendant was arrested.
II. Attempted Robbery Case (No. SS040727A)
On February 2, 2004, police responded to reports of a suspicious person at the Pacific Grove branch of the Washington Mutual Bank. Employees reported that a person unshaven and dirty appeared at the bank and one employee “ ‘sensed’ that he was not there to conduct normal banking business.” When the employee talked to her supervisor, the person was observed fleeing the bank. Approximately one-half hour after the police left the bank, they received a report of suspicious activity from Washington Mutual employees at a nearby branch; the person the employees described matched the description of the person from the prior incident. The person stood in line, approached the teller, asked her for the time, and left. The police located that person, defendant, a few minutes later in the vicinity of the bank.
Defendant gave the police a false identity; the police did not learn his true identity until he was fingerprinted at the police station. During a search of defendant, police found a handwritten note that said, “ ‘Don’t make any sudden moves, stay calm and emty [sic] your drawer.’ ”
After obtaining written consent from defendant, the police conducted a search of defendant’s home. They discovered a journal that contained an entry that defendant “ha[d] been smoking ‘crack’ for ten years. The writing in the journal matched the writing on the bank robbery note.” The police also recovered drug paraphernalia during the search.
Defendant told the police that he had lied about his identity because there was an outstanding warrant and he did not want to be arrested. He said “that he had no real plan for robbing the bank, and that he realized how much trouble he would get in, and decided not to go through with anything.” Police investigation disclosed that defendant had visited approximately five banks within a forty-minute period of time on February 2, 2004.
PROCEDURAL BACKGROUND
On November 6, 2003, defendant was charged in case number SS033244A with one count of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). On December 3, 2003, he pleaded no contest to the charge with the understanding that it would be treated as a misdemeanor at sentencing. Defendant failed to appear for sentencing and a bench warrant issued.
On February 6, 2004, defendant was charged in case number SS040727A with three counts of attempted second degree robbery (§§ 664/211), three counts of commercial burglary (§ 459), possession of controlled substance paraphernalia (Health & Saf. Code, § 11364), and one misdemeanor count of giving false information to a police officer (§ 148.9, subd. (a)). The complaint included special allegations that each of the felonies was committed while defendant was released on bail (§ 12022.1). On February 26, 2004, defendant entered a plea of guilty to one count of attempted second degree robbery on condition that the remaining charges and enhancements would be dismissed.
On March 26, 2004, the court imposed its sentence in case numbers SS033244A and SS040727A. Defendant was sentenced to a total prison term of three years and eight months, based upon an upper term sentence of three years for the attempted second degree robbery conviction and a consecutive eight-month sentence (one-third of the middle term) for the vehicle theft conviction. The court suspended execution of the sentence for five years. As a condition of probation in the vehicle theft case, defendant was ordered to serve 360 days in jail (with a credit of 85 days). As a probation condition in the attempted robbery case, the court ordered defendant to serve 80 days in jail (with a credit of 80 days). The court also imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b) in each case.
“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. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, . . . [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b).)
Approximately two years later, on March 7, 2006, defendant violated a term of his probation by testing positive for cocaine. A petition was filed seeking the revocation of his probation in both cases. Defendant admitted the probation violation. On November 15, 2006, the court revoked and terminated probation in both cases and imposed the three-year, eight-month prison sentence. The court also imposed restitution fines pursuant to section 1202.4, subdivision (b) of $600 and $200 in the attempted robbery case and the vehicle theft case, respectively; it assessed and suspended parole revocation restitution fines pursuant to section 1202.45 in the same amounts in the two cases.
“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 parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked. . . .” (§ 1202.45.)
The sentencing court gave custody credits in the attempted robbery case of 152 days (102 actual days plus 50 conduct credits). The court also concluded that 429 days of custody credits (287 actual days plus 142 conduct credits) should be applied against the vehicle theft sentence. Defendant objected, arguing that 189 days of credits—i.e., the number of credits that exceeded the amount of the vehicle theft sentence—should be applied to the attempted robbery sentence. The court noted that it would entertain further argument on the subject. Defendant argued in a brief that applying all of the credits to the vehicle theft case “would result in illegal ‘dead time’ ” in which credits would not be applied to reduce either sentence. After hearing further argument, the court rejected defendant’s position, concluding that the entire 429 days of custody credits should be applied against the eight-month vehicle theft sentence.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions:
1. He was entitled to have the excess custody credits (189 days) that the trial court applied to the sentence for the vehicle theft conviction applied against his sentence on the attempted robbery conviction, thereby giving him a total of 341 days of custody credits against the latter sentence.
2. The trial court erred at the time it revoked probation in November 2006 by awarding a second set of restitution fines and by assessing a $600 (rather than $200) parole revocation restitution fine in the attempted robbery case.
We address each of these appellate claims below.
II. The Application of Custody Credits
Section 2900.5 provides in relevant part as follows: “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. . . . [¶] (b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”
Our Supreme Court has explained that “the purpose of section 2900.5 is to ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody.” (People v. Bruner (1995) 9 Cal.4th 1178, 1183-1184 (Bruner), citing In re Rojas (1979) 23 Cal.3d 152, 156.) Stated otherwise, “[t]he statute addresses a ‘dual legislative purpose of “eliminat[ing] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts” [citation] and equalizing the actual time served in custody for given offenses. [Citation.]’ [Citations.] This ‘reflect[s] the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration.’ [Citation.]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 920; see also People v. Pottorff (1996) 47 Cal.App.4th 1709, 1715.)
Subdivision (b) of section 2900.5 expressly prohibits the double-crediting of custody credits against separate consecutive sentences imposed for multiple offenses. (See also Bruner, supra, 9 Cal.4th at p. 1193 [“credit windfalls are not within the [statute’s] contemplation”].) As the high court has also explained, ‘[t]here is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” (In re Rojas, supra, 23 Cal.3d at p. 156.)
As the Fifth District Court of Appeal has observed, and later described as “surely an understatement, ‘[c]redit determination is not a simple matter.’ [Citation.]” (People v. Adrian (1987) 191 Cal.App.3d 868 875, quoting People v. Chew (1985) 172 Cal.App.3d 45, 49.) There is little difficulty under section 2900.5 where the custody credit is for pretrial custody that resulted solely from conduct that led to a later conviction and the imposition of a sentence; however, “difficult problems arise when, as often happens, the custody for which credit is sought had multiple, unrelated causes.” (Bruner, supra, 9 Cal.4th at p. 1180.) Defendant argues that this case presents such “ ‘multiple restraint’ issues.” (Ibid.) He contends that the 360-day period for which he was in custody as a condition of probation was attributable, at least in part, to the attempted robbery proceedings; therefore, he was entitled to have the 189 days of “dead time” credited against the three-year prison term imposed for that offense. We are thus faced with “the recurring troublesome question of when custody is ‘attributable to proceedings related to the same conduct for which the defendant has been convicted’ within the meaning of section 2900.5, subdivision (b).” (In re Joyner (1989) 48 Cal.3d 487, 489.)
In Bruner, supra, 9 Cal.4th 1178, the court reaffirmed the viability of its “ ‘strict causation’ rule of Rojas and Joyner” (id. at p. 1193) “that where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was ‘a’ basis for the revocation matter as well.” (Id. at pp. 1193-1194.) The accused bears the burden of showing entitlement to presentence custody credit under section 2900.5. (People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258.) We conclude that defendant did not meet that burden.
Here, the presentence custody that resulted in the calculation of 429 days of custody credits was attributable solely to the vehicle theft case. As a condition of the March 26, 2004 grant of probation in the vehicle theft case (case no. SS033244A), defendant was ordered to serve 360 days in jail (with a credit of 85 days). That probation condition was not imposed in the attempted robbery case; rather, in case number SS040727A, the court imposed a separate probation condition of 80 days in jail (with a credit of 80 days). Thus, the time period spent in custody which defendant seeks to credit against the attempted robbery sentence—from the time the sentence was imposed and suspended with a grant of probation on March 26, 2004 forward—was attributable entirely to the vehicle theft case.
The record reflects that the dates that were used to calculate the 102 actual time custody credits given in case number SS040727A overlapped the days that were used to calculate actual time custody credits in case number SS033244A; in both cases, defendant received actual time credits for one day in the Pacific Grove Police Department (Feb. 2, 2004), 54 days in the county jail (from Feb. 3, 2004 to Mar. 26, 2004 [date of initial sentencing], and 47 days (Sept. 30, 2006 to Nov. 15, 2006). The remaining days of actual time credit that comprised the 287 days in case number SS033244A related to defendant’s incarceration in the county jail after his initial sentencing after March 26, 2004, through September 26, 2004.
In support of his position that the “dead time” custody credits should have been applied to the sentence in his attempted robbery case, defendant relies on two cases, In re Marquez (2003) 30 Cal.4th 14 (Marquez), and People v. Gonzalez (2006) 138 Cal.App.4th 246 (Gonzalez). Neither case suggests that the court erred in this instance.
In Marquez, the defendant had been arrested in Monterey for suspicion of first degree burglary and was released after posting bail; shortly thereafter, he was arrested in Santa Cruz on another burglary charge. (Marquez, supra, 30 Cal.4th at p. 17.) While he was in custody in the Santa Cruz County jail, Monterey County placed a “hold” on him. (Ibid.) The defendant was thus awaiting trial in the Santa Cruz County jail for the offenses committed in both counties. He was convicted of burglary in Santa Cruz and received a 10-year prison sentence; he was then rebooked into the Monterey County jail, convicted of burglary there and sentenced. (Id. at p. 18.) After the Santa Cruz case ultimately disappeared—after the defendant was convicted, the matter was reversed on appeal, and the superior court subsequently dismissed the case—the defendant sought without success to have the time he spent in custody from the date he was sentenced in Santa Cruz to the date he was sentenced in Monterey credited to the Monterey County case. (Ibid.)
The Supreme Court held that it was proper to credit the defendant for all jail time served after his arrest in Santa Cruz and the subsequent hold placed on him by Monterey County, concluding that “once Santa Cruz County dismissed its charges, all custody following Monterey County’s hold, including the period between [the defendant’s] sentencing in Santa Cruz County and his Monterey County sentencing, is properly characterized as ‘attributable to [the Monterey County] proceedings related to the same conduct for which the defendant has been convicted.’ (§ 2900.5[, subd.] (b).) The plain meaning of section 2900.5[, subdivison] (b) thus supports [the defendant’s] claim.” (Marquez, supra, 30 Cal.4th at p. 20.) In so holding, the court concluded that “[t]he requirement of ‘strict causation,’ on which this court relied in Bruner, supra, 9 Cal.4th 1178, and Joyner, supra, 48 Cal.3d 487, is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant. Here, because the Santa Cruz County charges have been dismissed, no possibility of a windfall (in the form of double credit) to [the defendant] exists.” (Id. at p. 23.)
In Marquez, the defendant was spending time in custody for two separate, unrelated crimes. Thus, it was clearly a “multiple restraint” case in which the incarceration was attributable to two separate crimes. Here, we reiterate, once defendant had been sentenced on March 23, 2004, the time he thereafter spent in the county jail was attributable solely to the vehicle theft case, because that incarceration was a condition of probation granted in that case alone. And in Marquez, once the Santa Cruz case was ultimately dismissed, the period of the defendant’s incarceration prior to his conviction in Monterey became solely attributable to the Monterey County proceedings for which the credit was sought. (Marquez, supra, 30 Cal.4th at p. 22.) In contrast, here—even assuming that the custody after the March 23, 2004 probation grant was at least partially attributable to the attempted robbery case, which it was not—the vehicle theft case (the case analogous to the Santa Cruz case in Marquez) did not disappear. Marquez plainly involved very different circumstances than the case before us and offers no support for defendant’s claim that the “dead time” credits should have been applied to reduce his sentence in case number SS040727A.
The fact pattern in Gonzalez, supra, 138 Cal.App.4th 246, was somewhat complicated. The relevant chronology was: (1) the defendant was charged in January 2003 with several counts of domestic violence and was placed on probation and released from jail in September 2003; (2) in November 2003, he was arrested on charges of vehicle theft, assault on a police officer with a firearm, and resisting arrest (collectively, the vehicle theft and gun case), and his probation from the domestic violence charges was summarily revoked; (3) in June 2004, while in custody, the defendant was charged with assaulting another inmate; (4) the defendant was found guilty in August 2004 of some but not all charges in the vehicle theft and gun case; and (5) in October 2004, a disposition was reached in all three cases, resulting in the defendant receiving consecutive sentences of four years, one year, and eight months on the inmate battery charge, the probation violation, and the vehicle theft and gun case, respectively. (Id. at pp. 248-250.) The dispute concerned the application of custody credits stemming from the time the defendant spent in jail between November 2003 and June 2004 (i.e., the time from the defendant’s arrest in the vehicle theft and gun case to the day before the inmate assault); the trial court allocated all of those credits (totaling 319 days) to the domestic violence case. (Id. at p. 250.) When those credits were added to other credits that were indisputably applied correctly to the domestic violence case, there were 680 days allocated to that case, resulting in 315 days of “dead time” credits. (Id. at pp. 250-251.) Defense counsel argued that the “dead time” credits should have been applied to the sentence related to the vehicle theft and gun case, but, despite invitation from the trial court, refused to brief the issue. (Id. at p. 251.)
This court, applying Marquez, supra, 30 Cal.4th 14, held that the “dead time” credits should have been applied to the vehicle theft and gun case, because the period of custody in question (from the defendant’s November 2003 arrest to the day before the inmate assault in June 2004) was attributable to two unrelated cases—the domestic violence case, and the vehicle theft and gun case. (Gonzalez, supra, 138 Cal.App.4th at p. 252.) We noted that Marquez had held that the rule of “strict causation” applied in cases where there was the possibility that duplicate credits would create a windfall for the defendant; but in Gonzalez, as in Marquez, no such possible windfall was present. (138 Cal.App.4th at p. 253.) We therefore held that “once the few days of custody left to complete the sentence in the domestic violence action were credited to [the] defendant, the remaining custodial time should have been characterized as solely attributable to the auto theft and gun case and allocated accordingly. Otherwise the vast majority of the time served during the second period of incarceration would become ‘dead time’ that was not attributable to any case, in contravention of Marquez.” (Id. at p. 254.)
Gonzalez offers no assistance to defendant here. Gonzalez, like Marquez, was indisputably a “multiple restraint” case; the defendant’s custody there was attributable to both the probation violation and the vehicle theft and gun case. Here, as we have explained, the incarceration in question was attributable solely to the vehicle theft case. Therefore, after the credits stemming from defendant’s incarceration after the March 2004 probation grant were applied to satisfy the vehicle theft sentence, there was no second case (unlike in Gonzalez) to which to apply the remaining 189 “dead time” credits.
Defendant argues that the imposition of 360 days and 80 days in jail as conditions of probation for the vehicle theft and attempted robbery cases, respectively, was “part of a package deal” for both cases; therefore, the 360-day jail condition was attributable to both cases. The two cases were not consolidated and there is nothing in the record to support defendant’s claim that this was a “package deal.”
Defendant urges that the resulting loss of the benefit of these “dead time” credits violates section 2900.5 and the Supreme Court’s holding in Marquez. But custody credits may be granted under section 2900.5 only “where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted” (§ 2900.5, subd. (b))—a circumstance not present here. In addition, the principal purpose of section 2900.5—“to ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody” (Bruner, supra, 9 Cal.4th at pp. 1183-1184)—would not be promoted by applying the “dead time” credits to the attempted robbery sentence here.
Moreover, while it is true that the Supreme Court in Marquez applied the custody credit to the Monterey County conviction in part because the denial of credit would result in a period of “dead time” for which the defendant would otherwise receive no credit at all (Marquez, supra, 30 Cal.4th at p. 20), it specifically noted that “[s]ometimes this result [the defendant receiving no benefit from time spent in custody] is unavoidable. For example, had [the defendant’s] Santa Cruz County presentence custody been attributable solely to the Santa Cruz County charges (that is, had Monterey County never placed a hold), dismissal of the Santa Cruz County charges would have left [the defendant] with no sentence against which credit for that period could be applied.” (Id. at pp. 20-21; cf. People v. Brown (1984) 156 Cal.App.3d 1131, 1134-1135 [“dead time” credits available after application of credits to three attempted theft sentences in case for which probation had been revoked could not be applied to sentence for subsequent burglary; credits stemmed from jail time served as probation condition in first case].) Hence, the fact that “dead time” credit would have otherwise been forfeited in Marquez did not eliminate the requirement under subdivision (b) of section 2900.5 that the custody for which credit is sought be “attributable to proceedings related to the same conduct for which the defendant has been convicted.”
Thus, this case presents an instance in which the fact that defendant receives no benefit from “dead time” credit is “unavoidable.” (Marquez, supra, 30 Cal.4th at p. 20.) “[Defendant] has failed to demonstrate his presentence custody within the meaning of section 2900.5 was attributable to anything other than case [number SS033244A]. That in retrospect [defendant] accumulated custody credits in excess of those which directly reduce his term in case [number SS033244A] is not a reason to permit him to benefit under section 2900.5 for [the three-year] term[] imposed . . . in case [number SS040727A].” (People v. Wiley (1994) 25 Cal.App.4th 159, 166.) The trial court did not err in refusing to apply the 189 days of “dead time” custody credits to the attempted robbery sentence.
We further reject defendant’s contention that the court’s refusal in November 2006 to apply “dead time” custody credits to the attempted robbery sentence effectively meant that the sentencing court in March 2004 had imposed an advance waiver of defendant’s right to custody credits without obtaining his express approval at the time. We need not address whether the March 2004 sentence effectively constituted such an involuntary waiver of custody credits; the argument is an untimely attack on the original sentence. Defendant did not appeal from the March 2004 sentence imposed after his no contest and guilty pleas to the vehicle theft and attempted robbery charges.
III. Restitution and Parole Revocation Restitution Fines
Defendant contends that the court’s imposition in November 2006 of restitution fines of $600 and $200 in the attempted robbery and vehicle theft cases, respectively, under section 1202.4, subdivision (b) was unauthorized by law. He cites People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers). In essence, defendant argues that the initial imposition of restitution fines of $200 in each case when probation was granted in March 2004 survived the later revocation and termination of probation in November 2006; thus, the imposition of the second restitution fines of $600 (in case no. SS040727A) and $200 (in case no. SS033244A) in connection with the same convictions was improper. Defendant argues further that the court erred in assessing a suspended parole revocation restitution fine of $600 in the attempted robbery case. Because (defendant urges) the amount of the fine allowable under section 1202.45 is the amount of the restitution fine assessed under section 1202.4, subdivision (b), and because the lawful restitution fine here was $200 (imposed in March 2004), the fine amount under section 1202.45 should have been $200. The Attorney General concedes both errors.
Defendant argues that, although he did not object below to the imposition of the second set of restitution fines and the $600 parole revocation restitution fine, he did not forfeit the claim of error. We agree. (See Chambers, supra, 65 Cal.App.4th at p. 823 [failure to object at sentencing did not forfeit challenge on appeal because “trial court exceeded its statutory authority in imposing the second restitution fine”]; see also People v. Andrade (2002) 100 Cal.App.4th 351, 354 [failure to object to imposition of allegedly unauthorized parole revocation restitution fine did not forfeit challenge on appeal].)
We concur with the parties that the imposition of the second set of restitution fines in the two cases was improper. Chambers, supra, 65 Cal.App.4th 819 is dispositive. There, after the defendant entered a no-contest plea to first degree burglary, the trial court granted probation with an order to pay a restitution fine of $200. (Id. at p. 821.) Four years later, the defendant’s probation was revoked, she was sentenced to nine years in prison, and the court imposed a second restitution fine of $500. (Ibid.) The appellate court struck the second fine, holding that it was unauthorized: “There is nothing in the current statutory scheme to suggest any change in the Legislature’s intent to have a restitution fine survive the revocation of probation. Indeed, the statutory scheme suggests otherwise. 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.] [¶] . . . There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation.” (Id. at pp. 822-823; see also People v. Arata (2004) 118 Cal.App.4th 195, 202-203; People v. Downey (2000) 82 Cal.App.4th 899, 921.)
Here, as was the case in Chambers, the trial court imposed second restitution fines in both cases following the revocation of probation. The second fines—of $600 in the attempted robbery case and $200 in the vehicle theft case—were unauthorized, because the first restitution fines imposed in March 2004 when the court granted probation survived the court’s revocation of probation in November 2006. (Chambers, supra, 65 Cal.App.4th at pp. 822-823.)
The parole revocation restitution fine that the court assessed and suspended in the attempted robbery case when it revoked probation was likewise unauthorized. The fine assessed under section 1202.45 should have been in the amount of $200, the amount of the restitution fine imposed when probation was granted. (See People v. Downey, supra, 82 Cal.App.4th at p. 921 [holding that restitution and parole revocation restitution fines imposed after probation was revoked ($600, each) had to be reduced to $200 each, the amounts of such fines imposed when court previously granted probation].)
At the time that defendant was granted probation, the court did not expressly impose parole revocation restitution fines under section 1202.45 in either case. But imposition of such a fine is mandatory where the trial court imposes a section 1202.4 restitution fine. (§ 1202.45.) And appellate courts are authorized to correct an error in the trial court’s imposition of a parole revocation restitution fine. (People v. Smith (2001) 24 Cal.4th 849, 853-854.)
DISPOSITION
The $200 and $600 restitution fines imposed in case numbers SS033244A and SS040727A, respectively, at the time probation was revoked in November 2006 are ordered stricken. The suspended parole revocation restitution fine of $600 assessed in case number SS040727A is reduced to $200. The judgment is modified to reflect the restitution fines of $200 originally imposed under section 1202.4, subdivision (b) in case numbers SS033244A and SS040727A in March 2004. The judgment is also modified to reflect a $200 parole revocation restitution fine (under § 1202.45) in case number SS040727A (with a parole revocation restitution fine in the same amount assessed in case no. SS033244A), which are suspended unless parole is revoked. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment consistent with the foregoing and deliver it to the Department of Corrections.
WE CONCUR: Mihara, Acting P.J., McAdams, J.