P. v. Kennedy

Filed 5/31/07 P. v. Kennedy CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

KEVIN KENNEDY,

Defendant and Appellant.

C053876

(Super. Ct. Nos. 04F06569, 04F07448)

Defendant Kevin Kennedy entered a negotiated no contest plea to a charge he conspired to commit the crime of pimping. He received a three-year prison sentence.

Although the trial court imposed no restitution fines at sentencing, the sentencing minutes and abstract of judgment reflect a $600 restitution fine (Pen. Code, 1202.4)^{^[1]}and a $600 parole revocation fine ( 1202.45).

Defendant contends the restitution fines are error, because the trial court never imposed them. The Attorney General agrees.

What remains in dispute is the remedy: defendant contends we should simply reduce these mandatory fines to the statutory minimum of $200 each, while the Attorney General asks that we remand the matter to the trial court to determine whether the $600 restitution fines should be reduced or imposed.

Under the circumstances, we choose the remedy urged by defendant. To avoid (among other evils) the anomaly of restitution fines costing more money than they generate, it is appropriate for an appellate court to impose the statutory minimum restitution fine when the trial court has failed to refer to any restitution fine at sentencing. (Cf. People v. Walker (1991) 54 Cal.3d 1013, 1029, citing People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316.)

DISPOSITION

The judgment is modified to reduce the $600 restitution fine to $200 ( 1202.4, subd. (b)), and to reduce the $600 parole revocation fine to $200 ( 1202.45). As modified, the judgment is affirmed. The trial court is directed to issue an

amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

RAYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^{^[1]} All further statutory references are to the Penal Code.

Description	Defendant entered a negotiated no contest plea to a charge he conspired to commit the crime of pimping. He received a threeyear prison sentence. Defendant contends the restitution fines are error, because the trial court never imposed them. The Attorney General agrees. Under the circumstances, Court choose the remedy urged by defendant. To avoid (among other evils) the anomaly of restitution fines costing more money than they generate, it is appropriate for an appellate court to impose the statutory minimum restitution fine when the trial court has failed to refer to any restitution fine at sentencing. (Cf. People v. Walker (1991) 54 Cal.3d 1013, 1029, citing People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316.) The judgment is modified,
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