P. v. McLain
Filed 6/12/13 P. v. McLain 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Glenn)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BRYAN PAUL McLAIN,
Defendant and Appellant.
C069277
(Super. Ct. Nos.
07NCR04820, 07SCR03940)
Following
his guilty pleas in these two cases, defendant Bryan Paul McLain was granted
five years of probation. At that time,
the trial court imposed in each case a $200 restitution fund fine (Pen. Code,
§ 1202.4, subd. (b)),
name="_ftnref1" title="">[1]
and a stayed $200 probation revocation fine (§ 1202.44). Later, upon probation being revoked, the
trial court imposed an $800 restitution fine in case No. 07NCR04820. Defendant appeals the imposition of this
second restitution fine as an unauthorized sentence. We agree with defendant and shall amend the
judgment.
BACKGROUND
The
substantive facts underlying defendant’s convictions are not relevant to the
issue raised on appeal and therefore we do not recount them.
In 2007,
defendant pleaded guilty in case No. 07NCR04820 to inflicting corporal
injury against a spouse or cohabitant.
Defendant absconded before he could be sentenced. Defendant was charged in case No. 07SCR03940
with willful failure to appear for his sentencing in case No. 07NCR04820,
and he pleaded guilty. Later, in a
single sentencing proceeding, defendant was granted five years of formal
probation and in each case, the court ordered him to pay a $200
1202.4, subdivision (b) and a $200 stayed probation revocation fine pursuant to
section 1202.44.
After
defendant violated his probation three times, it was revoked. The trial court sentenced defendant to
years in case No. 07NCR04820, and in case No. 07SCR03940, to an
additional and consecutive term of eight months. As relevant to this appeal, the trial court
also imposed at sentencing a restitution fine of $800 in case
No. 07NCR04820 (§ 1202.4, subd. (b)), and a corresponding $800 stayed
parole revocation fine (§ 1202.45).
In case No. 07SCR03940, the court imposed restitution and parole
revocation fines of $200.
DISCUSSION
Relying
on People v. Chambers (1998)
65 Cal.App.4th 819, 820 (Chambers),
defendant contends the trial court erred in imposing a second restitution fund
fine in the amount of $800 in case No. 07NCR04820. The People agree, as do we. Because the $200 restitution fine the trial
court initially imposed under section 1202.4 survived revocation of defendant’s
probation, the second $800 restitution fine imposed in case No. 07NCR04820
was unauthorized and must be stricken. (
p. 820.) “[T]his court has the
inherent power to correct the judgment to reflect what the law requires. (§ 1260; People v. Smith (2001) 24 Cal.4th 849, 854;
417-418.)†(People v. Guiffre (2008) 167 Cal.App.4th 430, 435.)
Here, the
abstract of judgment should reflect the imposition in case No. 07NCR04820
of a $200 restitution fund fine (§ 1202.4, subd. (b)) and the mandatory
parole revocation fine (§ 1202.45) in the same amount, stayed pending
revocation of parole.
Probation
having been revoked, the abstract should also reflect that the $200 probation
revocation fine imposed in each case when probation was initially granted under
section 1202.44 is now due.
DISPOSITION
The trial
court is ordered to amend the minutes of sentencing and abstract of judgment to
reflect the imposition in case No. 07NCR04820 of a $200 restitution fund
fine under section 1202.4, subdivision (b) and a $200 restitution fine under
section 1202.45, stayed pending revocation of parole. It shall also amend the minutes of sentencing
and abstract of judgment to reflect that the $200 probation revocation fines
under section 1202.44 previously imposed in case Nos. 07NCR04820 and 07SCR03940 are now due. The trial court is directed to forward a
certified copy of the amended abstract of judgment to the
BUTZ , J.
We concur:
BLEASE , Acting P. J.
NICHOLSON , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
