P. v. Stewart
Filed 7/30/07 P. v. Stewart CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A115279
v. (Solano County
Super. Ct. No. FCR182833)
BURNEY TYRONE STEWART,
Defendant and Appellant.
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Burney Tyrone Stewart appeals from a judgment entered after he pleaded no contest to uttering checks with insufficient funds. (Pen. Code, 476a, subd. (a).)[1] He challenges a restitution fine that was imposed. We agree the fine was imposed improperly and order the appropriate modification.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2000, appellant pleaded no contest to uttering checks with insufficient funds. On January 11, 2002, the trial court suspended the imposition of sentence and placed appellant on probation. As is relevant here, the court ordered appellant to pay a $200 restitution fine pursuant to section 1202.4.[2]
In August 2006, the appellant admitted violating his probation. On August 22, 2006, the court declined to reinstate probation and sentenced appellant to two years in prison. The court also imposed a $400 restitution fine under section 1202.4, and imposed but stayed a $400 restitution fine under 1202.45.[3]
II. DISCUSSION
Appellant contends the trial court could not validly impose a second restitution fine when it revoked his probation. The People concede the error and we agree. As another court stated in virtually identical circumstances, There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 823.) The appropriate remedy is to strike the second restitution fine, (ibid.) and to amend the abstract of judgment so that it reflects the $200 restitution fine under section 1202.4 that was imposed originally, and the identical $200 parole revocation fine that is mandatory under section 1202.45. (People v. Smith (2001) 24 Cal.4th 849, 851-854.)
III. DISPOSITION
The trial court is ordered to prepare and to forward to the appropriate authorities an amended abstract of judgment showing appellant is subject to a $200 restitution fine under section 1202.4, and a suspended $200 parole revocation fine under section 1202.45. In all other respects, the judgment is affirmed.
_________________________
Jones, P.J.
We concur:
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Gemello, J.
________________________
Needham, J.
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[1] All further section references will be to the Penal Code.
[2] Section 1202.4, subdivision (b) states, in part, In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so . . . .
[3] Section 1202.45 states, in part, In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the persons parole is revoked.
