P. v. Boone

Filed 7/10/06 P. v. Boone CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant pleaded no contest to one count of rape of an unconscious victim (Pen. Code, § 261, subd. (a)(4); further undesignated section references are to the Penal Code) and the trial court suspended imposition of sentence and placed him on formal probation for three years. The court also imposed various fines and ordered defendant to serve 270 days in county jail. He appeals contending a stayed probation revocation fine reflected in the clerk's transcript was never imposed by the court and is otherwise unlawful. We agree and strike the fine.

Facts and Proceedings

We take the facts from the preliminary hearing transcript, which the trial court used as the factual basis for defendant's plea.

In the evening of July 31, 2003, the victim, S.B., took some pain medication and fell asleep on a couch in her in-laws' home. She woke up at approximately 3:00 a.m. the next morning to find her pants and underwear pulled down and defendant on top of her with his penis inside her vagina. Defendant was not her husband. S.B. told defendant to stop but he continued to engage in sexual intercourse with her. The following day, S.B. reported the incident to her sister who in turn reported it to the police.

Defendant was charged with one count each of forcible rape (§ 261, subd. (a)(2)), rape of an unconscious victim (§ 261, subd. (a)(4)), and sexual battery of an unlawfully restrained person (§ 243.4, subd. (a)). He entered a plea of no contest to rape of an unconscious victim and the other charges were dismissed. Defendant later moved to withdraw his plea, but the motion was denied. The court suspended imposition of sentence and placed defendant on formal probation for three years, with 270 days in county jail. The court ordered defendant to pay restitution of $966 and victim restitution of $1,200. The clerk's transcript reflects an additional fine of $1,200 that was stayed pending successful completion of probation.

Discussion

Although defendant obtained a certificate of probable cause (§ 1237.5), his only challenge on appeal is to the stayed probation revocation fine.

Section 1202.44 authorizes a stayed probation revocation fine. It reads: â€