P. v. Lack
Filed 5/21/07 P. v. Lack 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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THE PEOPLE, Plaintiff and Respondent, v. DENNIS WAYNE LACK, Defendant and Appellant. | C053404 (Super. Ct. No. 05F1562) |
In 2004, defendant Dennis Wayne Lack pled no contest to assault by means of force likely to produce great bodily injury, and admitted inflicting great bodily injury under circumstances involving domestic violence, after his female friend reported that he had strangled her and kicked her with steel-toed boots. The trial court suspended imposition of sentence and placed defendant on probation on conditions including that he serve a period of time in county jail and pay a $200 restitution fine. (Pen. Code, 1202.4, subd. (b); further section references are to the Penal Code.)
Two years later, after defendant admitted allegations that he violated his probation, the trial court revoked probation, imposed a six-year prison sentence, and ordered defendant to pay a $600 restitution fine ( 1202.4, subd. (b)) plus another $600 restitution fine suspended unless parole is revoked (the parole revocation fine) ( 1202.45).
On appeal, defendant contends, and the People concede, that the trial court erred in increasing the amount of the restitution fine from $200 to $600. It is settled that, upon revocation of probation, a court may not increase the amount of a previously imposed restitution fine. (People v. Arata (2004) 118 Cal.App.4th 195, 201-203; People v. Johnson (2003) 114 Cal.App.4th 284, 306-307; People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.) Thus, we shall modify the judgment to reduce the restitution fine and the parole revocation fine to $200 each.
Defendant also contends, and the People concede, that the abstract of judgment must be corrected on line 11 to accurately reflect that the trial court calculated defendants custody credits using section 2933.1, not section 4019. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [trial courts oral pronouncement of judgment controls over clerks minute order].)
DISPOSITION
The judgment is modified to reduce the $600 restitution fine to $200 ( 1202.4, subd. (b)) and reduce the $600 parole revocation fine to $200 ( 1202.45). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect these modifications and to show that defendants custody credits are calculated in accordance with section 2933.1, not section 4019. The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
SCOTLAND, P.J.
We concur:
NICHOLSON , J.
RAYE , J.
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