P. v. Kepple
Filed 2/2/10 P. v. Kepple 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
THE PEOPLE, Plaintiff and Respondent, v. KEITH WILLIAM KEPPLE, Defendant and Appellant. | C061804 (Super. Ct. No. 06F7098) |
After defendant Keith William Kepple entered a negotiated plea of guilty to possessing cocaine (Health & Saf. Code, 11350, subd. (a)), the trial court suspended imposition of sentence, placed defendant on three years probation, and ordered him to pay various fines and fees, including a $400 restitution fine (Pen. Code, 1202.4, subd. (b)). The court also imposed a $50 criminal laboratory analysis fee (Health & Saf. Code, 11372.5), plus penalty assessments on that fee of $120, for a total of $170.
Defendants probation was revoked nearly three years later, after he had more than once violated his probation by testing positive for cocaine use and failing to complete treatment. The court then sentenced him to the mid-term of two years in prison and imposed a second $400 restitution fine (Pen. Code, 1202.4, subd. (b)) and a criminal laboratory analysis fee of $162.50, which includes penalty assessments, in accordance with Health and Safety Code section 11372.5.
On appeal, defendant contends, and the People concede, that the court erred in reimposing the fine and fee at sentencing.
They are correct. A Penal Code section 1202.4, subdivision (b) restitution fine survives the revocation of probation, and the trial court, in subsequently imposing sentence, is not authorized to impose a different restitution fine for the same conviction. (People v. Andrade (2002) 100 Cal.App.4th 351, 357; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) The abstract of judgment indicates that the second $400 restitution fine was imposed in addition to the fine in the same amount imposed when probation was first granted. Therefore, imposition of a second $400 restitution fine at sentencing was error.
The same must be said of the criminal laboratory analysis fee. When it initially granted defendant probation, the trial court ordered one such fee that, with penalty assessments, totaled $170. That fee survives the revocation of probation (cf. People v. Chambers, supra, 65 Cal.App.4th at p. 822), and the courts imposition of a second such fine -- in the amount of $162.50 -- was unauthorized. But because the abstract of judgment reflects only the laboratory fee plus penalty assessments of $170 previously imposed by the Tehama Court Superior Court, and not the $162.50 fee plus assessments imposed at sentencing, the abstract need not be amended to correct the error at sentencing.
DISPOSITION
The judgment is modified by striking the $400 restitution fine and the criminal laboratory analysis fee imposed on April 10, 2009. As modified, the judgment is affirmed. The trial court is hereby directed to prepare an amended abstract of judgment in accordance with this opinion and forward it to the Department of Corrections and Rehabilitation.
BLEASE , J.
We concur:
SCOTLAND , P. J.
SIMS , J.
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