P. v. McGowan

Filed 8/16/06 P. v. McGowan CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE PEOPLE,

Plaintiff and Respondent, A112861

v. (Solano County

Super. Ct. No. FCR181731)

ANTHONY JAMES McGOWAN,

Defendant and Appellant.

______________________________________/

Anthony James McGowan appeals from an order revoking his probation. He challenges a restitution fine that was imposed. We agree the fine was imposed improperly and will order the appropriate modification. I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2000, appellant pleaded no contest to transporting methamphetamine. (Health & Saf. Code, § 11379.) The trial court sentenced appellant to 10 years in prison, but suspended the execution of sentence and placed appellant on probation. As is relevant here, the court ordered appellant to pay a $200 restitution fine pursuant to Penal Code^[1] section 1202.4.^[2]

On July 7, 2005, appellant admitted violating his probation. On December 14, 2005, the court lifted the suspension and ordered appellant to serve the 10-year term it had imposed previously. In addition, the court ordered appellant to pay a $400 restitution fine under section 1202.4, subdivision (b), and imposed but suspended a $400 parole revocation fine under section 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, â€