P. v. Heisser
Filed 11/15/13 P. v. Heisser CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DERRICK ASHLEY HEISSER,
Defendant
and Appellant.
E057532
(Super.Ct.No.
SWF029850)
OPINION
APPEAL
from the Superior Court
of
County. Becky Dugan,
Judge. Affirmed as modified.
David
K. Rankin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Derrick Ashley Heisser was convicted of
in violation of his probation (super. court case No. SWF029850). On May
25, 2010, the court granted defendant 60 months of probation,
ordered a restitution fine of $200, and a probation revocation fine of $200,
which it stayed.
On
June 18, 2012, the People
charged defendant with felony possession of a firearm by a prohibited
individual (count 1—§ 25850, subd. (c)), possession of a firearm by one
addicted to a narcotic (count 2—§ 29800, subd. (a)(1)), and possession of ammunition
by a prohibited person (count 3—§ 30305, subd. (a).
with a violation of probation.
On
August 30, 2012, defendant
pled guilty to count 1 and admitted a violation of his probation. The court revoked defendant’s probation and
sentenced him to serve 16 months in state prison. As to defendant’s conviction in the
substantive count in case No. RIF1203073, the court imposed a restitution fine
of $240 and a parole revocation fine of $240.
As
to the probation revocation case, the court noted it was “Imposing all of the fees
previously imposed[.]†The minute order
for the order revoking defendant’s probation reflects imposition of a
restitution fine of $240 and a parole revocation fine of $240.
Defendant
contends the court was limited to imposing restitution and revocation fines of
$200, as previously imposed. Defendant
maintains the fines must be reduced from $240 to $200. The People acknowledge the minute order and
abstract of judgment in case No. SWF029850 for the probation revocation
improperly reflects imposition of $240 restitution and revocation fines and
must be corrected to reflect the $200 amount the court previously imposed. However, the People maintain imposition of
the $240 fines in case No. RIF1203073 was proper. We agree with the People.
The
trial court must impose the probation revocation fine at the same time and in
the same amount as the restitution fine.
(§ 1202.44; People v. Guiffre
(2008) 167 Cal.App.4th 430, 434.) The
court is without authority to increase the amount of the fines at a time when
probation is later revoked. (
819, 823; People v. Downey (2000) 82
Cal.App.4th 899, 921; People v. Garcia
(2006) 147 Cal.App.4th 913, 917; People
v. Cropsey (2010) 184 Cal.App.4th 961, 966.) “When an abstract of judgment does not reflect the actual
sentence imposed in the trial judge’s verbal pronouncement, this court has the
inherent
whether on our own motion or upon application of the parties. [Citation.]â€
(People v. Jones (2012) 54
Cal.4th 1, 89; People v. Myles (2012)
53 Cal.4th 1181, 1222, fn. 14.)
“In
every case where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the
record.†(§ 1202.4, subd. (b).) “If the person is convicted of a felony, the
fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012 . . . .†(§ 1202.4, subd. (b)(1).) “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.†(§ 1202.45, subd. (a).)
Here,
the court did not impose restitution or revocation fines of $240 when it
revoked defendant’s probation in case No. SWF029850. Rather, the court imposed “all of the fees
previously imposed[.]†In other words,
the court only imposed the $200 restitution and revocation fines it had imposed
in that case on May 25, 2010. Thus, the minute order dated September 14, 2012, and abstract of
judgment in case No. SWF029850, improperly reflect an amount of $240 for each for
the respective fines. Therefore, we
shall order the superior court to modify the minute order and abstract of
judgment. On the other hand, because the
$240 fines imposed in case No. RIF1203073 were imposed in another case in which
defendant was convicted of a felony, imposition of the fines in the amount of
$240 was proper.
The
superior court is directed to modify the defendant’s sentencing minute order
dated September 14, 2012, and the abstract of judgment to reflect imposition of
$200, instead of $240, fines for restitution and revocation. The modified and corrected abstract of
judgment and minute order shall be forwarded to the
Rehabilitation. In all other
respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] By order dated October 3, 2013, we took judicial
notice of the minute orders dated August 30, 2012, and September 14, 2012, in
case No. RIF1203073, the superior court case for defendant’s new substantive
charges.
