Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025781
SCOTLAND, P. J.
In 2007, defendant Michael Patrick Wiggins pled no contest to first degree residential burglary (Pen. Code, § 459) and driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)). He was placed on probation and was ordered to pay fees and fines, including a $25 “work program fee,” a $36 crime prevention fine (Pen. Code, § 1202.5), $40 court security fee (Pen. Code, § 1465.8), and two restitution fines totaling $300 (Pen. Code, § 1202.4, subd. (b) [a $200 restitution fine for the burglary conviction and a $100 restitution fine for the driving under the influence of alcohol conviction]). (Further section references are to the Penal Code unless otherwise specified.)
After defendant five times violated terms of his probation, the trial court revoked probation in 2008. The probation report prepared prior to sentencing noted that defendant “is current on paying his fines and fees. His last payment was received on October 3, 2008, and his balance is $6,184.00.” At sentencing, the court announced it was “setting aside any formal probation fees,” and then ordered defendant to pay among other things a $27 crime prevention/theft fine (§ 1202.5), $40 court security fee (§ 1465.8), and $300 in restitution fines (§ 1202.4, subd. (b)).
On appeal, defendant challenges some of the fines and fees imposed by the trial court.
DISCUSSION
I
Defendant contends that, although the trial court properly ordered section 1202.4, subdivision (b) restitution fines totaling $300 upon the grant of probation, it improperly imposed a second, and unauthorized, set of section 1202.4, subdivision (b) fines in the same amount at sentencing and pronouncement of judgment after probation was revoked. Citing People v. Chambers (1998) 65 Cal.App.4th 819 (hereafter Chambers), he says the restitution fines imposed at the pronouncement of judgment must be stricken.
We agree that, because a restitution fine imposed when probation is granted survives revocation of probation, the court may not impose another restitution fine after the revocation of probation; if it does so, the remedy is to strike the second fine. (Chambers, supra, 65 Cal.App.4th at pp. 822-823; People v. Arata (2004) 118 Cal.App.4th 195, 202.) The same result applies to a second crime prevention fine (called a “theft” fine by the trial court) imposed pursuant to section 1202.5, and second security fee imposed pursuant to section 1465.8. (Cf. People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
The alleged error in this case is not as clear as it was in Chambers, where the trial court plainly ordered two separate sets of restitution fines. (Chambers, supra, 65 Cal.App.4th at p. 821.) Here, with the exception of the crime prevention fine, the amount of the fine and fee imposed in 2008 was identical to the amount previously imposed when probation was granted in 2007. As to the restitution fines and court security fee, the oral pronouncement of their imposition at sentencing was not inconsistent with recitation of those imposed when probation was granted. The trial court’s oral pronouncement about “setting aside any formal probation fees” is ambiguous, but the abstract of judgment reflects only one set of restitution fines under section 1202.4, one set of court security fees, and one crime prevention fine. Although the abstract does not specify that the fines and fees were imposed when probation was granted in 2007, rather than when defendant was sentenced to prison on October 23, 2008, the probation report indicates these fines and fees were components of a fund into which defendant had been making regular payments during the ensuing year, and those payments presumably reduced their balance.
Under the circumstances, we conclude the appropriate disposition is to modify the judgment to specify the section 1202.4 restitution fines, crime prevention fine, and court security fee are those that were imposed on January 25, 2007.
II
Defendant next contends the “work program fee” of $25 imposed in 2007 must be stricken because “there was no legal authority to impose such a fee.” The fee was not reimposed at sentencing in 2008, and it is not reflected in the abstract of judgment.
The People acknowledge that neither the probation report nor the trial court stated the statutory basis for imposing this fee, although they contend such authority is provided by Penal Code sections 4024.2, 4024.3, and Butte County Code, articles 36 through 50. Defendant does not dispute that the sections identified by the People authorize Butte County to establish a work program and to impose an administrative fee upon participants. He claims, however, that he was precluded from participating in any custody-alternative programs, including a work release program, and thus should not have had to pay the fee.
The contention fails because, as the People correctly point out, defendant’s challenge to this fee is untimely. The order granting probation and imposing a work program fee in connection with participation in a work program was an appealable order. Defendant did not appeal from that order and cannot do so now. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.)
DISPOSITION
The judgment is modified to specify that separate restitution fund fines of $200 and $100 pursuant to subdivision (b) of section 1202.4, a $36 crime prevention fine pursuant to section 1202.5, and a $40 court security fee pursuant to section 1465.8 were imposed by the trial court on January 25, 2007. As modified, the judgment is affirmed. The court is directed to so amend the abstract of judgment and include therein the $25 work program fee, and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, J., SIMS, J.