P. v. Patton
Filed 10/29/07 P. v. Patton CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN TRAVIS LAMONT PATTON, Defendant and Appellant. | F052080 (Super. Ct. Nos. F05900348-4, F05900888-9, F06905174) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.
James L. Lozenski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On February 25, 2005, appellant, Adrian Travis Lamont Patton, pled no contest in Fresno County Superior Court case No. F05900348-4 to possession of cocaine base (Health & Saf. Code, 11350, subd. (a)) and to a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).[1] Patton also admitted possession of cocaine base and a prior prison term enhancement in Fresno County Superior Court case No. F0590888-9. Patton was found eligible for Proposition 36 probation. On March 22, 2005, the court suspended imposition of sentence, placed Patton on probation, and ordered him to pay a restitution fine of $200 in each case pursuant to section 1202.4.[2]
On January 3, 2007, Patton pled no contest to misdemeanor counts of failure to register as a sex offender ( 290, subd. (a)(1)(C)(i)) and to resisting, obstructing, or delaying a peace officer ( 148, subd. (a)(1)) in Fresno County Superior Court case No. F06905174. On January 3, 2007, a probation revocation hearing was conducted in case Nos. F05900348-4 and F0590888-9. At the conclusion of the hearing, the court found Patton had violated the terms of his probation based on his convictions in case No. F06905174.
The court sentenced Patton to prison in case No. F05900348-4 for one year four months and ordered it run concurrent with his sentence of one year four months in case No. F0590888-9. Upon a statement of reasons, the court dismissed the prior prison term enhancement Patton admitted in case No. F05900348-4. The court awarded custody credits of 318 days and imposed a restitution fine in each case of $200. On appeal, Patton contends, and respondent concedes, that the trial court erred in reimposing the $200 restitution fines ( 1202.4).[3]
DISCUSSION
When Patton was originally placed on probation, the trial court imposed a $200 restitution fine in case Nos. F05900348-4 and F0590888-9 pursuant to section 1202.4. When Patton was found in violation of the terms of his probation, the court again imposed $200 restitution fines in each case pursuant to section 1202.4.
In People v. Chambers (1998) 65 Cal.App.4th 819, 823 (Chambers) the trial court had originally imposed a $200 restitution fine when the defendant was placed on probation. Later, after revoking probation and sentencing the defendant to prison, the trial court imposed a $500 restitution fine. (Ibid.) The Chambers court held that the trial court exceeded its statutory authority in imposing a second restitution fine of $500 in addition to the original $200 restitution fine. Because the error was an unauthorized sentence, Chambers held the issue was not waived by the defendants failure to object at the sentencing hearing.[4] (Ibid.) Chambers found that the second $500 restitution fine had to be stricken, but that the first $200 restitution fine was still operative. (Ibid.)
The parties concur that the restitution fines imposed at sentencing on January 3, 2007, pursuant to section 1202.4, must be stricken. We agree, but note that Patton is still obligated to pay restitution of $200 in each case pursuant to section 1202.4. There is no indication in the probation report, or any other portion of the record, that Patton paid the original $200 restitution fine in either case. Patton is still legally obligated according to Chambers to pay these fines, but does not have to pay each fine twice.
DISPOSITION
Patton owes a single restitution fine of $200 in case No. F05900348-4 and $200 case No. F0590888-9 pursuant to section 1202.4. On remand, the trial court shall strike the additional $200 restitution fine imposed in each case on January 3, 2007, correct its records to show that Patton owes a single section 1202.4 restitution fine in each case, and forward the corrected records to the appropriate authorities. The judgment is otherwise affirmed.
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* Before Harris, Acting P.J., Cornell, J., Dawson, J.
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] The court indicated it was imposing a $200 restitution fine in each case. The clerks transcript, however, shows the $200 restitution fine imposed in case No. F0590888-9 but does not indicate the $200 restitution fine ordered in case No. F05900348-4. The abstract of judgment appears to accurately reflect that Patton only has to pay a single restitution fine of $200 in each case pursuant to section 1202.4.
[3] Because the only issue on appeal concerns the imposition of restitution fines, we do not recount the underlying facts of Pattons offenses.
[4] Patton did not object to the imposition of additional restitution fines at the January 3, 2007 hearing.
