Filed 5/15/18 P. v. Jackson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CHRIS ANDREW JACKSON,

Defendant and Appellant.
C084443

(Super. Ct. No. CR151367)





Defendant Chris Andrew Jackson pleaded no contest to animal cruelty and threatening a victim or witness because of assistance in prosecution, and was placed on formal probation for five years. (Pen. Code, §§ 597, subd. (a), 140.) After violating probation multiple times, the court finally revoked probation and sentenced defendant to an aggregate term of three years eight months in prison.
Appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After examining the record, we conclude the trial court erred in orally pronouncing restitution fines pursuant to sections 1202.4 and 1202.45, but that the abstract of judgment already reflects the proper statutory restitution fine amounts. We shall therefore modify the judgment to include the proper restitution fines, and affirm the judgment as modified. No correction to the abstract of judgment is necessary.
FACTS AND PROCEEDINGS
In July 2015, defendant pleaded no contest to killing, wounding, or torturing animals (§ 597, subd. (a)), and threatening force or violence on a witness because of assistance in prosecution (§ 140). He also admitted a prior strike allegation. (§ 667, subds. (b)-(i).) In August 2015, the court struck defendant’s strike prior and placed defendant on five years’ formal probation according to the plea agreement. The terms of defendant’s probation included, among other things, serving 365 days in jail, completing a residential treatment program, not violating any city or county ordinance or state or federal law, and abstaining from using or possessing alcohol or from being in a place where alcohol was the main item of sale or use.
On October 8, 2015, the court summarily revoked defendant’s probation after he refused to complete the residential treatment program as ordered. At the hearing on the violation of probation, defendant admitted the violation and the court reinstated him on probation with modified terms. The court ordered defendant to serve the 45 days remaining on his jail sentence and to enroll in an outpatient treatment program as determined by probation upon his release.
Although the court ordered defendant to serve 45 days in jail, defendant was erroneously released from custody on October 8. He failed to timely report to probation as required. A second violation of probation was filed on November 3, 2015, alleging that defendant failed to report to probation after being released from custody, and that he had three other alcohol-related violations. The court summarily revoked probation.
The second violation of probation was heard on February 29, 2016. Defendant waived his right to a contested hearing and admitted the four counts contained in the violation of probation. Probation was reinstated and defendant was sentenced to 88 days in county jail. Because he had 88 days’ credit, he was reinstated with jail time served.
The court revoked defendant’s probation for a third time on April 7, 2016, after it was alleged he had been arrested for battery. A later amended declaration by probation also alleged that he failed to report to probation after he posted bail on the battery arrest; that he was arrested on April 13, 2016, for public intoxication; and that he then failed again to report to probation after this second arrest. At a hearing on June 9, 2016, defendant admitted all the violations. The court reinstated probation, and sentenced defendant to 128 days in jail with credit for time served.
Defendant’s probation was revoked a fourth time on September 4, 2016, based on allegations that he failed to report to probation after his release (count 1), and that he failed to complete a treatment program (count 2). After appearing in court on October 12, 2016, defendant posted bail and was released. Nearly three weeks later, on October 31, defendant was arrested for public intoxication.
At a hearing on November 9, 2016, defendant denied the allegations. An amended declaration regarding violation of probation filed a week later added two more allegations regarding the October 31 incident: that defendant was arrested for public intoxication on October 31 (count 3); and that he had consumed alcohol on that date (count 4). Defendant was ordered to appear on December 5, 2016.
On December 5, defendant was released on his own recognizance with GPS pending a January 2017 hearing on the alleged violations. Two weeks later, on December 19, 2016, defendant was arrested for public intoxication.
Probation filed a second amended declaration of violation of probation on December 23, 2016, adding two more allegations against defendant: that probation saw him holding a beer bottle on December 5 (count 5), and that he was arrested for public intoxication on December 19 (count 6).
During a January 17, 2017, hearing on the violation of probation allegations, probation presented evidence on counts 3 through 6. Woodland Police Officer Parveen Lal testified that on October 31, 2016, she was dispatched to a parking lot in Woodland after someone called to complain about a drunk man causing a disturbance. Officer Lal located the vehicle and saw vomit and an empty beer can on the ground outside the vehicle. Defendant was sitting in the front passenger seat; he was extremely agitated, smelled of alcoholic beverages, and had bloodshot eyes and slurred speech. Defendant responded “yes” when she asked him if he had drunk the beer. She arrested him for being drunk in public. No test for alcohol use was administered.
Defendant testified that he was hit by a car on October 15, 2015, and had suffered extensive injuries. He claimed that he had one drink of beer along with his medicine on October 31, 2016, and had thrown up because he was supposed to take his medicine with food.
Probation Officer Noe Lopez testified that she had followed defendant when he was released on December 5, 2016. She saw him standing in front of a liquor store holding a plastic bag, which he immediately handed to another person standing next to him. When she approached, she saw it was an unopened bottle of beer. Defendant told her that it was someone else’s beer or that he was holding it for a friend.
Woodland Police Officer Evan Black testified that he arrested defendant on December 19, 2016, after receiving a report that an aggressive, intoxicated male was in front of a store. When he arrived at the store, defendant was seated on the sidewalk in front of the entrance. His pants were wet and he smelled of urine and alcohol; he was yelling. Defendant’s eyes were watery and slightly bloodshot, and he had slurred speech. Defendant could not state what city they were in, nor the time of day. He could not walk or support his own weight. No test for alcohol use was administered.
After considering the witness testimony, the court found that sufficient evidence established counts 3 through 6. Defendant’s probation remained revoked.
On February 15, 2017, the court sentenced defendant to three years eight months in prison. The court imposed the middle term of three years for the threatening a witness offense, and a subordinate term of eight months (one-third the middle term) for the animal cruelty conviction.
The court orally imposed a $200 restitution fine for each felony conviction (§ 1202.4), plus a $30 restitution collection fee (§ 1202.4, subd. (l)), a $300 parole revocation restitution fine for each felony conviction, suspended unless parole was revoked (§ 1202.45), a $300 probation revocation fine (§ 1202.44), an $80 court operations assessment (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373). Testing was also ordered under section 296. The court awarded defendant 621 total presentence credits: 311 actual days and 310 conduct credits under section 4019.
On August 1, 2017, defendant’s appellate counsel filed an informal nonappearance motion under People v. Fares (1993) 16 Cal.App.4th 954 in the trial court disputing the amount of presentence credits. According to counsel, the trial court granted the informal motion and amended the abstract of judgment to show 624 total presentence credits.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we received no further communication from defendant.
Following an examination of the record, we conclude the trial court erred in imposing restitution fines in this case. The trial court orally ordered: “They’ll [sic] be a $200 restitution fine for each felony conviction, and a $30 restitution collection fee. [¶] The previously ordered restitution fine in case 15-1367, will remain in full force and effect and will be collected by the Department of Corrections. An additional restitution fine of $300 for each felony conviction will be imposed and staid [sic] as long as the defendant is performing satisfactorily on parole; however, that stay will automatically be lifted should his parole be revoked . . . .”
Defendant was subject to only one section 1202.4 restitution fine and a single section 1202.45 parole revocation restitution fine. (People v. Sencion (2012) 211 Cal.App.4th 480, 482-483.) Furthermore, the statutory minimum restitution fine under section 1202.4 applicable to this case was $300 not $200 (§ 1202.4, subd. (b)(1) [“If the person is convicted of a felony, the [restitution] fine shall not be less than three hundred dollars ($300)”]), and the parole revocation restitution fine must be identical to the amount imposed pursuant to section 1202.4. (§ 1202.45, subd. (a) [“In every case where a person is convicted of a crime and his or her 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”].)
Although the court erred in orally pronouncing the restitution fines, the abstract of judgment lists a restitution fine of $300 pursuant to section 1202.4, subdivision (b), an identical $300 parole revocation restitution fine imposed and suspended unless parole was revoked under section 1202.45, and a $300 probation revocation restitution fine under section 1202.44 given that defendant’s probation had been revoked. While the oral pronouncement of judgment normally controls over an abstract of judgment that contains a discrepancy (People v. Zackery (2007) 147 Cal.App.4th 380, 385), because the abstract of judgment reflects the proper restitution fines despite the court’s error, the abstract of judgment need not be amended.
DISPOSITION
The judgment is modified to reflect a $300 restitution fine pursuant to section 1202.4, subdivision (b)(1) and a parole revocation restitution fine in the same amount pursuant to section 1202.45. As so modified, the judgment is affirmed.



HULL , J.



We concur:



BLEASE , Acting P. J.



BUTZ , J.