Fear Not Law Articles: P. v. Hawkins

P. v. Hawkins

Filed 1/29/09 P. v. Hawkins CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

DENNIS HAWKINS,

Defendant and Appellant.

A121991

(Solano County

Super. Ct. No. VCR186819)

INTRODUCTION

Dennis Hawkins appeals from a judgment of the Solano County Superior Court following the courts revocation of his probation after his plea of no contest to possession of cocaine base. (Health & Saf. Code, 11350, subd. (a).) Appellant asserts, and respondent Attorney General concedes, that the court erred in imposing a second restitution fine of $400 pursuant to Penal Code section 1202.4,^{^[1]}where it had originally imposed a $200 restitution fine pursuant to section 1202.4 upon granting probation. Respondent also concedes that the court erred in imposing and suspending a parole revocation fine pursuant to section 1202.45 in the amount of $400, as the mandatory stayed parole restitution fine imposed under section 1202.45 must be identical in amount to the restitution imposed under section 1202.4.

STATEMENT OF THE CASE

The facts of appellants offense and probation violations are not pertinent to the issues on appeal. When it originally granted appellant probation on April 20, 2007, the court imposed a $200 restitution fine pursuant to sections 1202.4 and 1202.44. Following the revocation of appellants probation, the court sentenced appellant to two years in state prison with credit for 183 days of time served. At that time, the court imposed a $400 restitution fine pursuant to section 1202.4 and imposed and then stayed a $400 parole revocation fine pursuant to section 1202.45.^{^[2]}

DISCUSSION

According to People v. Chambers (1998) 65 Cal.App.4th 819, 821-823, and its progeny, a restitution fine imposed at the time of conviction and granting of probation remains the same despite a future revocation of probation. There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. (Id. at p. 823.) Therefore, when probation is revoked, the trial court has no authority to impose a second restitution fine in a greater amount that the original fine. (See also, e.g., People v. Garcia (2006) 147 Cal.App.4th 913, 917.) Moreover, where a restitution fine is imposed under section 1202.4, imposition of an identical but stayed parole revocation restitution fine under section 1202.45 is mandatory and this court may order the abstract of judgment corrected to reflect the 1202.45 parole revocation restitution fine. (People v. Smith (2001) 24 Cal.4th 849, 851-854.)

As respondent concedes, the second restitution fines were unauthorized and their unlawful imposition may be raised without an objection below. (People v. Chambers, supra, 65 Cal.App.4th at p. 823.)

DISPOSITION

The trial court minutes of May 27, 2008 are corrected to reflect that the additional $400 restitution fines pursuant to sections 1202.4 and 1202.45 are stricken; the original $200 restitution fine is reinstated ( 1202.4), and the parole restitution fine is reduced to $200 ( 1202.45). The abstract of judgment, filed May 30, 2008, is modified to so reflect. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. So modified, the judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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^{^[1]}All statutory references are to the Penal Code, unless otherwise indicated.

^{^[2]}The court referred to section 1202.44, but apparently meant a parole revocation fine pursuant to section 1202.45, as it stated the fine will be stayed pending successful completion of his parole. The abstract of judgment refers to this as a section 1202.45 fine, suspended unless parole is revoked.

Description	Dennis Hawkins appeals from a judgment of the Solano County Superior Court following the courts revocation of his probation after his plea of no contest to possession of cocaine base. (Health & Saf. Code, 11350, subd. (a).) Appellant asserts, and respondent Attorney General concedes, that the court erred in imposing a second restitution fine of $400 pursuant to Penal Code section 1202.4,[1]where it had originally imposed a $200 restitution fine pursuant to section 1202.4 upon granting probation. Respondent also concedes that the court erred in imposing and suspending a parole revocation fine pursuant to section 1202.45 in the amount of $400, as the mandatory stayed parole restitution fine imposed under section 1202.45 must be identical in amount to the restitution imposed under section 1202.4. The judgment is affirmed.
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