P. v. Robinson

Filed 6/8/06 P. v. Robinson CA1/1

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Eric Robinson has taken this appeal from the judgments in Alameda County Superior Court case Nos. C133300 and CH36820. He challenges only the restitution fines imposed in case No. C133300, a judgment that was entered after revocation of probation.

When defendant was placed on probation, the court ordered payment of a $200 restitution fund fine. (Pen. Code, § 1202.4, subd. (b).)[1] When probation was revoked and sentence was imposed, the court again ordered payment of the $200 restitution fund fine, along with a $1,000 stayed parole restitution fine (§ 1202.45). As the People correctly concede, the parole restitution fine should have been $200, rather than $1,000, because section 1202.45 stipulates that this fine is to be in the same amount as the one imposed pursuant to section 1202.4, subdivision (b).

When defendant's appellate counsel brought this error to the attention of the trial court, the court, rather than reducing the section 1202.45 fine to $200, equalized the fines by increasing the section 1202.4, subdivision (b) fine to $1,000. As the People again correctly concede, the court erred because the section 1202.4, subdivision (b) fine imposed on revocation of probation must be the same as the one imposed when probation was granted. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.)

The judgment in case No. CH36820 is affirmed.

The judgment in case No. C133300 is modified to impose a restitution fund fine of $200 under section 1202.4, subdivision (b), and a parole restitution fine of $200 under section 1202.45, and, as so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications, and forward it to the Department of Corrections.

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Marchiano, P.J.

We concur:

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Stein, J.

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Margulies, J.

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