P. v. Sheldon
Filed 10/2/07 P. v. Sheldon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. LEE ALLEN SHELDON, Defendant and Appellant. | C054115 (Super. Ct. No. CM023012) |
After a jury found defendant Lee Allen Sheldon guilty of felony spousal abuse, the trial court sentenced defendant to 36 months of formal probation and a 90-day jail term. When defendant violated the terms of his probation, the court sentenced him to three years in prison for the spousal abuse conviction.
On appeal, defendant contends the trial court erred in imposing a duplicate restitution fine. Finding an error in the abstract of judgment, we will direct the trial court to amend the abstract of judgment but otherwise affirm the judgment.
DISCUSSION
When on December 28, 2005, the trial court placed defendant on probation, it imposed a $200 restitution fine. (Penal Code,[1] 1202.4.) After it revoked probation, it imposed a $200 restitution fine at sentencing on October 30, 2006. Defendant contends that the latter $200 restitution fine imposed pursuant to section 1202.4 is unauthorized and must be stricken.
Section 1202.4, subdivision (b), requires the imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 820.) Thus, imposition of a second, or duplicate, restitution fine upon revocation of probation is unauthorized and must be stricken, notwithstanding the absence of an objection at sentencing. (Id. at pp. 821-823; People v. Arata (2004) 118 Cal.App.4th 195, 201.)
The alleged error in this case is not as clear as it was in Chambers, where plainly the trial court ordered two separate restitution fines. (People v. Chambers, supra, 65 Cal.App.4th at pp. 820-821.) Here, the amount of the restitution fine ($200) was identical to the amount previously imposed; there was no indication that defendant had paid anything on the previous fine, which would make the $200 amount correct; the oral pronouncement of the fine at the sentencing hearing was not inconsistent with its being a reiteration of the previous fine; and the abstract of judgment reflects only one $200 restitution fine under section 1202.4. Thus, it is unclear whether the trial court improperly imposed a second fine, although we observe that we generally indulge in the presumption that the trial court was aware of, and properly applied, the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
On the other hand, the abstract of judgment does not specify that the $200 restitution fine was imposed at the time probation was granted on December 28, 2005, rather than when defendant was sentenced to prison on October 30, 2006. Accordingly, we conclude the abstract of judgment should be modified to clarify that the restitution fine was imposed on December 28, 2005. If this modification reflects the trial courts intention at the sentencing hearing on October 30, 2006, the modification would be appropriate pursuant to the rule that the oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) If, on the other hand, the court intended to impose a second restitution fine, then modification of the abstract of judgment would be warranted to repair the unauthorized sentence. In either factual scenario, the abstract of judgment needs to be amended.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect this modification and to specify that the $200 restitution fine ( 1202.4) was imposed on December 28, 2005. As amended, the judgment is affirmed. The trial court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
ROBIE , J.
We concur:
SIMS , Acting P.J.
MORRISON , J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
