Opinion
A113932
12-8-2006
THE PEOPLE, Plaintiff and Respondent, v. CHANCE ANTONIO VIGIL, Defendant and Appellant.
Chance Antonio Vigil appeals from a judgment of conviction in two separate cases, contending the trial court erred by imposing increased restitution fines following revocation of probation. The People concede the error. We modify the judgment by striking the increased restitution fines but otherwise affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised in Vigils appeal relates to the restitution fine, we need not discuss the facts of the underlying offenses and probation violations.
In case number FCR 228470, Vigil entered a negotiated plea of no contest to one count of vehicle theft (Veh. Code, § 10851, subd. (a)). In case number FCR 229225, Vigil entered a negotiated plea of no contest to one count of second degree burglary (Pen. Code, § 459). At a joint sentencing hearing on January 13, 2006, the court suspended imposition of the sentence in both cases and placed Vigil on formal probation subject to certain terms and conditions, including Vigils completion of a drug treatment program. The court imposed a "combined" restitution fine of $200 pursuant to section 1202.4 and a probation revocation fine of $200 pursuant to section 1202.44. Although the clerk prepared separate minute orders in the two cases ostensibly reflecting the imposition of a $ 200 restitution fine in each case, a notation next to the restitution fine on the minute order for case number FCR 228470 ("fines & fees w/FCR229225") appears to indicate the courts expressed intention to impose a single set of fines and fees for both cases.
All further statutory references are to the Penal Code unless otherwise specified.
On April 11, 2006, the trial court revoked Vigils probation based upon allegations that Vigil had failed to complete a residential drug program and failed to contact his probation officer after dropping out of the program. Vigil admitted the probation violations at a hearing on April 26, 2006.
At a joint sentencing hearing held on May 16, 2006, the court sentenced Vigil to prison. In case number FCR 229225, the court selected the upper term of three years for second degree burglary. In case number FCR 228470, the court imposed one-third of the midterm of two years for vehicle theft, for an additional eight months, to run consecutive to the sentence imposed in case number FCR 229225. The court imposed a total restitution fine of $1,200 pursuant to section 1202.4 and a parole revocation fine of $1,200 pursuant to section 1202.45. The court stayed the parole revocation fine unless parole was revoked. An abstract of judgment encompassing both cases reflects the imposition of a $600 restitution fine and a $600 parole revocation fine in each case.
Vigil filed a timely notice of appeal in each case.
DISCUSSION
The sole issue raised on appeal is whether the trial court exceeded its authority by increasing the restitution fines for each case after revoking Vigils probation. Vigil relies on People v. Chambers (1998) 65 Cal.App.4th 819, 820, in which the Court of Appeal held that "a restitution fine imposed at the time probation is granted survives the revocation of probation." The People concede that the second set of section 1202.4 restitution fines were unauthorized and that Vigil may raise the issue on appeal even though he failed to object below. (See People v. Chambers, supra, 65 Cal.App.4th at p. 823 [failure to object does not waive issue because court exceeds its authority by imposing increased restitution fine after probation revocation].)
We agree with the parties that the trial court may not impose a new restitution fine under section 1202.4 following probation revocation. Notwithstanding the Peoples concession, there remains some question about how the judgment should be modified. In particular, it is unclear whether there should be single or multiple $200 restitution fines. In addition, there is also an issue about whether the parole revocation fines imposed after probation revocation should be modified to equal the originally imposed restitution fine. Unfortunately, the parties have offered no guidance on these issues. However, because we are empowered to correct an unauthorized sentence at any time (see People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6), we address these issues to avoid modifying the judgment in a manner that would impose an unauthorized sentence.
Regarding whether single or multiple $200 restitution fines should be imposed, the trial courts intent at the time it originally granted probation was clear—it imposed a "combined" or single $200 restitution fine pursuant to section 1202.4. One of the two minute orders from the hearing at which the trial court granted probation appears to reflect the courts decision to impose a single set of fines and fees for both cases. Even if the minute orders could be interpreted to reflect separate fines for each case, the trial courts oral pronouncement of judgment controls over the minute orders to the extent they are inconsistent with the courts oral judgment. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Because the originally imposed, single restitution fine of $200 survives probation revocation, a sentence imposing multiple $200 restitution fines would be unauthorized. (See People v. Chambers, supra, 65 Cal.App.4th at p. 823.) Accordingly, there should be a single $200 restitution fine under section 1202.4 imposed for both cases taken together.
Although the two criminal actions were not technically consolidated, the trial courts decision to sentence Vigil at a single proceeding allowed it to impose one restitution fine under section 1202.4, subdivision (b). (Cf. People v. McNeely (1994) 28 Cal.App.4th 739, 743-744; but see People v. Enos (2005) 128 Cal.App.4th 1046, 1049 [trial court may impose multiple restitution fines for nonconsolidated cases at single sentencing hearing provided total fine does not exceed $10,000].)
As for the parole revocation fine, section 1202.45 provides in relevant part in the case of a person whose sentence includes a period of parole that the sentencing court shall impose an additional parole revocation restitution fine "in the same amount as [the restitution fine] imposed pursuant to subdivision (b) of Section 1202.4." (Italics added.) The language of the statute affords no discretion to set the parole revocation fine in an amount other than the amount of the restitution fine. (Cf. People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.) Therefore, the parole revocation fine should have been set in the amount of $200 for both cases taken together. We shall modify the judgment accordingly. (See ibid.)
DISPOSITION
The judgment for case numbers FCR 228470 and FCR 229225 is modified to reflect a combined $200 restitution fine pursuant to section 1202.4 and a combined $200 parole revocation restitution fine pursuant to section 1202.45. As modified, the judgment is affirmed. 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 and Rehabilitation.
We concur:
POLLAK, J.
SIGGINS, J.