P. v. Avalos
Filed 1/29/07 P. v. Avalos CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 977(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY LEO AVALOS,
Defendant and Appellant.
| 2d (Super. (Los
|
Timothy Leo
Avalos appeals a judgment imposing an eight-year term of imprisonment, a $1,600
restitution fine, and a $1,600 stayed parole
revocation restitution fine. (Pen. Code, §§ 1202.4, subd. (b) &
1202.45.)[1] We modify the
judgment to reflect an $800 restitution fine and an $800 stayed parole
revocation restitution but otherwise affirm.
FACTS
AND PROCEDURAL HISTORY
On January 14, 2004, Avalos confronted the mother of his children as she drove from the
children's day care provider. Avalos threatened her and struck her in the face
with a firearm. Avalos also pointed the firearm at a passing motorist and her
child. The jury convicted him of two counts of assault with a deadly weapon
and found that he personally used a
firearm during the assault against his girlfriend. (§§ 245, subd.
(a)(2) & 12022.5.)
The trial
court imposed a prison sentence of eight years, with an $800 restitution fine
and an $800 stayed parole revocation restitution fine. It then suspended execution
of sentence and granted Avalos four years' probation with terms and
conditions. One probation condition precluded him from owning or possessing a
dangerous or deadly weapon.
On November 16, 2005, Los Angeles police officers and parole officers were searching the residences
of parolees in Chatsworth. Parolee Angel Tristan resided there with Avalos.
Avalos informed police officers that he was a probationer and he consented in
writing to a search of his residence. The officers found a knife with a fifteen-and-a-half-inch
blade in Avalos's bedroom, ammunition in a hallway closet, and two firearms and
ammunition in a gun safe in an empty bedroom.
Following a
contested probation violation hearing, the trial court revoked Avalos's grant
of probation, and ordered the eight-year term of imprisonment to be served.
The trial court also imposed a $1,600 restitution fine and a $1,600 parole
revocation restitution fine.
DISCUSSION
Avalos
appeals and challenges the increased restitution fines. He relies upon People
v. Chambers (1998) 65 Cal.App.4th 819, 823, concluding that a restitution
fine imposed at the time probation is granted survives the revocation of
probation.
The trial
court erred by increasing the restitution fine and the stayed parole revocation
restitution fine. (People v. Chambers, supra, 65 Cal.App.4th
819, 823.) The Attorney General concedes.
We modify
the judgment by striking the $1,600 restitution fine and $1,600 stayed parole
revocation restitution fine. The $800 restitution fine and $800 stayed parole
revocation restitution fine remain in force. The trial court shall correct the
abstract of judgment and forward the amended abstract to the Department of Corrections.
The judgment is otherwise affirmed.
NOT TO
BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN,
J.
Harvey
Giss, Judge
Superior
Court County of Los Angeles
______________________________
Sharon
Fleming, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill
Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General,
Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen,
Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
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