P. v. Castillo

Filed 7/31/07 P. v. Castillo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this case, we review the courts order modifying defendant Ernesto Castillos sentence after revocation of probation. We shall modify the abstract of judgment to accurately reflect the courts oral sentence pronouncement and order a reduction in the restitution fines and parole revocation restitution fines.

Facts & Statement of the Case

First Offense: Petty Theft of Sunglasses

In July 2001, in case number SS011651, defendant was charged with one count of petty theft with a prior (Pen. Code,[1] 666, 484), one count of commercial burglary ( 459), and a prison prior ( 667.5, subd. (b)) after stealing two pairs of sunglasses that were worth $40 from a department store.

Defendant pleaded guilty to the petty theft and admitted the prison prior on the condition that he be placed on probation and that he serve no more than one year in the county jail. As part of the plea bargain, defendant agreed that if he violated probation, he would be sentenced to three years in prison.

At sentencing in January 2002, the burglary count and the prison prior allegation were dismissed. The court suspended imposition of sentence and placed defendant on probation for three years. The conditions of his probation included 120 days in jail and a restitution fine of $200 ( 1202.4, subd. (b)).

Second Offense: Petty Theft of Camera

On February 3, 2002, defendant took an $80 camera from a Costco store. He was charged in case number SS020755 with petty theft with a prior ( 666, 484). The complaint alleged he had two prison priors ( 667.5, subd. (b)). The prosecution filed a notice of probation violation based on the camera theft.

Defendant subsequently pleaded guilty to the petty theft of the camera and admitted one of the prison priors on the condition he be placed on probation. Consecutive prison terms of three years for the petty theft and one year for the prison prior were imposed with execution suspended. Defendant was placed on probation for three years on the condition he serve one year in the county jail. Defendant was also ordered to pay a restitution fine of $200 and complete a drug treatment program. The court gave defendant the option of entering a residential treatment program after 300 days in custody.

Modification of Probation Conditions on First Offense

On March 15, 2002, defendants probation in case number SS011651 was revoked, reinstated and modified. Defendant was sentenced to the upper term of three years in state prison with execution of the sentence suspended. He was returned to probation on the same conditions as in case number SS020755, with his sentence to be served concurrent with the sentence in that case.

Further Probation Violations

On April 8, 2002, probation was summarily revoked and a bench warrant issued in both cases after defendant failed to return to jail after being given a pass to attend a doctors appointment. On April 11, 2002, defendant allegedly violated probation again when he committed the following offenses: reckless driving, driving on a suspended license, attempting to evade a police officer, and failing to comply with the orders of a police officer (Veh. Code, 23103, 14601.1, 2800.2, 2800).

On December 6, 2002, defendant was arraigned on the probation violation for the failure to return from the doctors appointment. The prosecution subsequently filed a petition to revoke probation in both cases. Defendant admitted the probation violation.

At the sentencing hearing on the probation violation in March 2003, the court revoked and terminated probation in both cases. The court imposed the previously suspended upper term of three years in each case, with the sentence in case number SS011651 to be served concurrent with the sentence in case number SS020755. The court imposed restitution fines ( 1202.4, subd. (b)) of $600 in each case and imposed and suspended parole revocation restitution fines in the same amounts ( 1202.4, subd. (b), 1202.45).

Examination Regarding Narcotics Addiction and Modification of Sentence

The court ordered defendant examined by a physician pursuant to Welfare and Institutions Code section 3051 to determine his narcotic addiction. Defendants drug of choice was heroin. The physician concluded that defendant met the criteria for narcotic addiction under the statute, that if he were released, he would be in imminent danger of using narcotics, and that he was a suitable candidate for the California Rehabilitation Center (CRC).

On April 18, 2003, defendant appeared for resentencing. The court sentenced defendant to four years in state prison in case number SS020755 (the upper term of three years on the petty theft plus one year for the prison prior enhancement), with a concurrent middle term of two years in case number SS011651.[2] The court then found that defendant was a narcotic addict within the meaning of Welfare and Institutions Code section 3051 and that he would benefit from the treatment at the CRC. Therefore, the court ordered the criminal proceedings suspended in both cases and ordered defendant confined at the CRC.

In August 2006, the court modified defendants sentence in both cases. In case number SS020755, the court sentenced defendant to three years in prison on the petty theft of the camera plus one year for the prison prior enhancement, for a total of four years. The court ordered defendant to pay a restitution fine of $800 ( 1202.4, subd. (b)) and imposed and suspended a parole revocation restitution fine in the same amount ( 1202.4, subd. (b), 1202.45).

In case number SS011651, the court sentenced defendant to three years for the petty theft of the sunglasses. The court ordered that defendants sentence be served concurrent with his sentence in case number SS020755 and that defendant pay a restitution fine of $600[3] ( 1202.4, subd. (b)). The court ordered and suspended a parole revocation restitution fine in the same amount ( 1202.4, subd. (b), 1202.45).

Discussion

Restitution Fines

Defendant contends the restitution fines must be reduced.

Trial courts are required to order restitution fines in every case where a person is convicted of a crime, unless it finds compelling and extraordinary reasons for not doing so. ( 1202.4, subd. (b).) The amount of the fine shall be set at the courts discretion. If the defendant is convicted of a felony, the fine may not be less than $200 and may not exceed $10,000. ( 1202.4, subd. (b)(1).)

We shall examine the restitution fines imposed in each case separately.

When the court first granted probation in case number SS011651 in January 2002, it imposed a $200 restitution fine under section 1202.4, subdivision (b). At that time, the court did not order a corresponding parole revocation restitution fine under section 1202.45. When the court revoked and reinstituted probation on March 15, 2002, it did not mention the restitution fines. When the court revoked probation and imposed a prison sentence on March 12, 2003, it imposed a restitution fine of $600 and imposed and suspended a corresponding parole revocation restitution fine of $600. The court subsequently suspended criminal proceedings when it ordered defendant confined to the CRC. When the court modified defendants sentence in August 2006, the court ordered a restitution fine of $600 and a parole revocation restitution fine of $600.

When the court first granted probation in case number SS0020755 on March 15, 2002, it imposed a $200 restitution fine under section 1202.4, subdivision (b). Once again, the court did not order a corresponding parole revocation restitution fine. When the court revoked probation and imposed a prison sentence on March 12, 2003, it imposed a restitution fine of $600 and imposed and suspended a corresponding parole revocation restitution fine of $600. When the court modified defendants sentence in August 2006, it ordered a restitution fine of $800 and a parole revocation restitution fine of $800.

Defendant contends the restitution fines ( 1202.4) imposed in August 2006, must be stricken because the $200 fine imposed when probation was originally granted in each case remained in full force and effect. He does not challenge the parole revocation restitution fines.

The Attorney General concedes that a trial court cannot impose a second restitution fine upon revocation of probation and that the restitution fines in amounts greater than $200 must be stricken. He argues that the parole revocation restitution fines must be reduced to $200 each. We agree.

The imposition of a restitution fine at the time of conviction and granting of probation survives subsequent probation revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823 (Chambers); People v. Downey (2000) 82 Cal.App.4th 899, 921.) Here, as in Chambers, the trial court lacked statutory authority to impose the higher fines because the $200 restitution fines imposed when defendant was first granted probation remained in force despite the later revocation of defendants probation.

When the court imposes a sentence that includes a period of parole, it is required to assess a parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. ( 1202.45.) Since the only lawful restitution fines in effect were the original $200 fines, the parole revocation restitution fines must be reduced to $200. We will modify the judgment accordingly. (Chambers, supra, 65 Cal.App.4th at p. 823.)

Correction of Abstract of Judgment

Defendant contends the abstract of judgment must be corrected because it does not properly reflect the sentence in case number SS011651.

It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] . . . The court may correct such errors on its own motion or upon the application of the parties. (In re Candelario (1970) 3 Cal.3d 702, 705.) Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

When the court revoked defendants probation in March 2003, it sentenced him to the upper term of three years in case number SS011651, which was consistent with the terms of the original plea bargain. It also ordered the sentence be served concurrent with the sentence in case number SS020755. The court did not impose additional time for the admitted enhancement for the prison prior because it had been dismissed at the January 2002 sentencing hearing. When the court modified the sentence on August 11, 2006, there was some confusion regarding whether the previous sentence was two or three years. (See footnote 2 on page 4 of this opinion.) Just before pronouncing the three-year sentence, the court stated:

THE COURT: Let me take a look here. March 12[, 2003] order was for the upper term of three years.

[PROSECUTOR]: Ive also got that on March 15th of 02, upper term three years state prison ESS. It was a year on the 667.5(b) [enhancement], according to one of the notes. So it should be [a] three[-]year sentence.

THE COURT: Like I say, I think its pretty academic. [] All right. Lets correct your record and make it three years that that was what was imposed, because I dont think the Court has jurisdiction to change it if that was what was actually stayed.

The abstract of judgment from August 2006 reflects a two-year concurrent sentence on the petty theft in case number SS011651. Defendant asks us to correct the abstract of judgment to add the one year admitted enhancement for the prison prior. The Attorney General argues that the record is unclear whether the court meant to impose a two-year midterm sentence plus the one-year enhancement for a total of three years or whether it meant to impose the three-year upper term sentence. Based on our reading of the record and the discussion between the court and counsel set forth above, we conclude that the court meant to impose the three-year upper term on the petty theft, without additional time for the enhancement. In addition, pursuant to defendants plea bargain, the maximum sentence to be imposed was three years. We shall order the abstract corrected to reflect the three-year sentence on the petty theft in case number SS011561.

Disposition

The court is directed to modify the judgment by striking the $600 restitution fines ( 1202.4, subd. (b)) imposed on August 11, 2006 in both cases. The $200 restitution fines imposed in January 2002 (case number SS011561) and March 2002 (case number SS020755), remain in force. The court is directed to modify the judgment by reducing the parole revocation restitution fines ( 1202.45) in both cases to $200. As so modified, the judgment is affirmed.

The court is also directed to correct a clerical error in the abstract of judgment filed on August 15, 2006 and record the sentence on the petty theft with a prior in case number SS011561 as the upper term of three years, to be served concurrent with the sentence in case number SS020755. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] All further statutory references are to the Penal Code, unless otherwise stated.

[2] The court had no authority to impose any sentence other than the previously imposed but suspended sentence of three years in case number S011651.

[3] At the sentencing hearing on August 11, 2006, there was initially some confusion regarding whether the court had previously sentenced defendant to two or three years in prison in case number SS011651. Ultimately, the court sentenced defendant to three years in prison and imposed fines of $200 for each year of incarceration pursuant to 1202.4 (b), an additional $200 suspended pursuant to 1202.45. The three-year sentence was recorded as the middle term of two years plus one year for the prison prior in the minute order. The sentence was recorded as the two-year middle term and the fines were recorded as $400 each on the abstract of judgment. Where there are discrepancies between the judgment as orally pronounced and as recorded in the minutes or the abstract of judgment, the courts oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471-472.) Based on the courts oral pronouncement, we conclude the court sentenced defendant to three years in prison and imposed restitution fines of $600 in case number SS011651.