P. v. Graham
Filed 1/7/13 P.
v. Graham 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
DWAYNE
DARRISH GRAHAM,
Defendant and
Appellant.
C070384
(Super. Ct. No. 08F07515, 09F00563)
Following
a guilty plea, defendant Dwayne Darrish Graham was granted five years’
probation. The trial court imposed a
$200 restitution fund fine (Pen. Code, § 1202.4),
1202.44). Later, upon probation being
revoked, the trial court imposed a $600 restitution fine. Defendant appeals the imposition of this
second restitution fine as an unauthorized sentence. We agree with defendant and correct the
judgment.
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
In
2009 defendant pleaded guilty to robbery
and was granted five years’ formal probation.
A $200 restitution fund fine was imposed under section 1202.4, and a
corresponding $200 probation revocation fine was imposed and stayed under
section 1202.44. Following a
probation search of his home in 2011, defendant was found in possession of
ammunition. A contested probation
hearing was held and the court found defendant had violated the terms of his
probation. Probation was revoked, and
defendant was sentenced to a term of five years in state prison and awarded 426
days of credit for time served. On the
issue of restitution, the court stated, “the laws also require that I impose
the mandatory restitution fine as indicated by law. I will order that in the amount of $600
payable forthwith or as provided by the Penal Code; suspend the state prison
parole fine pending successful completion of his parole; delete the booking and
classification fee.†The minutes and
abstract of judgment each reflect that a $600 restitution fund fine was imposed
under section 1202.4. The minutes and
abstract of judgment also reflect the imposition of a $600 parole revocation
fine under section 1202.45.
DISCUSSION
Relying
on People v. Chambers (1998) 65
Cal.App.4th 819, 820 (Chambers),
defendant contends the trial court erred in imposing a second restitution fund
fine in the amount of $600. The People
respond that the trial court’s statement reflects it aggregated each of the
$200 fines imposed under sections 1202.4, 1202.44, and 1202.45. Thus, the People claim, it is not the
judgment itself that is erroneous, but the abstract of judgment and minute
order that incorrectly reflect the judgment imposed. Based on the record before us, we agree with
defendant.
We
acknowledge there is some mathematical appeal to the People’s argument that the
$600 fine imposed was an aggregation of three separate $200 restitution fines
under sections 1202.4, 1202.44, and 1202.45.
But if the trial court was attempting to impose three separate statutory
fines, it should have verbally specified each additional fine and fee imposed,
along with the statutory basis for each, during the pronouncement of
judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Moreover,
the People’s argument does not find support in the record. The trial court stated it was imposing a
singular $600 restitution fine, not three separate fines, each with a distinct
statutory basis. The trial court did not
use any language to suggest it was merely restating the previously imposed restitution
fine and aggregating it with two separate fines. Furthermore, as we have previously indicated,
“there is no need to reimpose an extant restitution fine. Where a restitution fine(s) has been
previously imposed, the trial court should simply say, ‘The abstract of
judgment should reflect the restitution fine(s) previously imposed.’ †(People v. Cropsey (2010) 184
Cal.App.4th 961, 966.) Furthermore, the clerk’s minutes and the abstract of judgment
reflect the imposition of a $600 restitution fund fine and a $600 parole
revocation fine, not three $200 fines.
Contrary to the People’s claim, this is a record that affirmatively
demonstrates error.
Because
the $200 restitution fine the trial court initially imposed under
section 1202.4 survived revocation of defendant’s probation, the second
$600 restitution fine imposed was unauthorized and must be stricken. (Chambers, supra, 65 Cal.App.4th
at p. 820.) “[T]his court has the
inherent power to correct the judgment to reflect what the law requires. (§ 1260; People v. Smith (2001) 24 Cal.4th 849, 854; In re Sandel (1966) 64 Cal.2d 412, 417–418.)†(People
v. Guiffre (2008) 167 Cal.App.4th 430, 435.) Here, the abstract should reflect the
imposition of a $200 restitution fund fine (§ 1202.4) and the mandatory
parole revocation fine (§ 1202.45), stayed pending revocation of parole. Probation having been revoked, the abstract
should also reflect that the $200 probation revocation fine imposed under
section 1202.44 is now due.
DISPOSITION
The
trial court is ordered to correct the minutes and abstract of judgment to
reflect the imposition of a $200 restitution fund fine under section 1202.4; a
$200 mandatory parole revocation fine under section 1202.45, stayed pending
revocation of parole; and that the $200 probation revocation fine under section
1202.44 is now due, probation having been revoked. The trial court is directed to forward a
certified copy of the corrected abstract of judgment to the
RAYE , P. J.
We
concur:
BLEASE , J.
NICHOLSON , J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the Penal Code.
name="_ftn2" title="">[2] The substantive facts
underlying defendant’s convictions are not relevant to the issue raised on
appeal and are therefore not recounted.
