P. v. Snidow

Filed 6/21/07 P. v. Snidow CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Modified and affirmed.

Jonathan B. Steiner and Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

David Snidow (appellant) appeals from the judgment entered following the revocation of probation, sentencing him to prison, granting 313 days custody credit, and imposing an $800 restitution fine and an $800 parole revocation fine. We modify and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2006, following a no contest plea, appellant was convicted of inflicting corporal injury to a spouse (Pen. Code, 273.5, subd. (a)) and possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)). The court imposed a three-year prison sentence, suspended execution of the sentence, and granted appellant three years probation. He was ordered to pay a $200 restitution fine and a $200 probation revocation fine was imposed and stayed. He was given credit for 183 days in custody (122 days of actual credit and 61 days conduct credit). As a condition of probation, appellant was ordered to stay away from Jessica Hernandez.

On September 20, 2006, a probation revocation hearing was held. Two police officers testified that Jessica Hernandez told them that in June 2006, appellant got into her car, threatened to kill her, and choked her until she passed out. The court found appellant had violated the terms and conditions of his probation and imposed the previously suspended three-year sentence, ordered payment of an $800 restitution fine pursuant to Penal Code section 1202.4, and imposed and stayed an $800 parole revocation fine pursuant to Penal Code section 1202.45. The court awarded appellant 313 days presentence credit.

After filing a notice of appeal, appellant filed a motion in the superior court to correct the award of presentence credit to reflect 361 days (241 actual plus 120 conduct credit). The court denied that motion. Appellant also filed a motion to reduce the restitution fine. The court denied that motion as well.

DISCUSSION

The record reflects that appellant was arrested on October 28, 2005. He entered his guilty plea on March 30, 2006, and was released. Appellant was arrested on the probation violation on June 26, 2006, and sentenced on September 20, 2006. The People concede that appellant is entitled to custody credits of 154 days for the period prior to the order granting probation plus 87 days following the arrest on the probation violation, and that he is also entitled to 120 days conduct credit, for a total of 361 days. (People v. Downey(2000) 82 Cal.App.4th 899, 920-921.)

Appellants original sentence included a $200 restitution fine and a $200 probation revocation fine. After the revocation hearing, the court imposed an $800 restitution fine and an $800 parole revocation fine. The People concede that it was improper for the court to impose a greater fine than it imposed at the time probation was granted. (People v. Arata (2004) 118 Cal.App.4th 195, 201; People v. Downey, supra, 82 Cal.App.4th at p. 921.)

DISPOSITION

The judgment is modified by: 1) striking the $800 restitution fine, leaving in force the $200 restitution fine originally imposed pursuant to Penal Code section 1202.4, subdivision (b); 2) striking the $800 parole revocation fine, and imposing and staying a $200 parole revocation fine pursuant to Penal Code section 1202.45; and 3) awarding appellant 241 days of custody credit plus 120 days conduct credit for a total of 361 days instead of the 313 days previously awarded. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J. WILLHITE, J.

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