P. v. Clausen

Filed 7/18/06 P. v. Clausen CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed in part, reversed in part, and remanded.

Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

Christian Clausen appeals from judgment entered following revocation of probation and imposition of a seven-year prison sentence previously suspended. He had previously pled no contest to assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), admitted that he personally used a deadly and dangerous weapon in the commission of the offense within the meaning of Penal Code section 12022, subdivision (b)(1), and that he suffered one prior conviction of a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (a)(1) and (b)-(i). He contends the court erred when it imposed a restitution fine at the time his probation was revoked because it had previously imposed such a fine when he was placed on probation. Appellant additionally claims the court lacked authority to impose a second court security fee when his probation was revoked. For reasons explained in the opinion, we affirm the judgment and remand the matter to the trial court to issue a new order relative to the fines and the security fee.

FACTUAL AND PROCEDURAL SUMMARY

The evidence at the probation revocation hearing established that on May 27, 2005, when deputy probation officer Steven Howell and his partner went to appellant's residence in Lancaster to check compliance with conditions of probation, the officers found a sword in a sheath and a pellet rifle. Appellant had very recently moved into the residence with his fiancée, and she claimed to have inherited the weapons from her father when he died. The trial court found appellant to be in constructive possession of the weapons and in violation of probation.

I

When the trial court initially placed appellant on probation, it imposed a restitution fine in the amount of $200.~(RT 4)~ Following revocation of probation, the trial court ordered appellant to pay a mandatory $200 restitution fine per year, for seven years, or $1,400. ~(RT 34, CT 53)~ Appellant contends, and respondent agrees, the second restitution fine was unauthorized.

The trial court imposed two restitution fines for the same conviction. â€