P. v. Wood
Filed 1/5/10 P. v. Wood 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. RYAN PATRICK WOOD, Defendant and Appellant. | E047578 (Super.Ct.Nos. FMB700562 & FMB700563) OPINION |
APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed as modified.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ryan Patrick Wood pled guilty to two counts of inflicting corporal injury on a spouse or cohabitant (count 1 in each case Nos. FMB700562 & FMB700563) (Pen. Code, 273.5, subd. (a)),[1]and also admitted a prior conviction for inflicting corporal injury on a spouse or cohabitant ( 273.5, subd. (a)). Defendant contends that when he was sentenced, following revocation of probation, fines that duplicated those imposed upon his grant of probation were imposed. We affirm with modifications to the fines and fees imposed.
I. BACKGROUND
On February 7, 2008, pronouncement of judgment was withheld and defendant was granted probation in both cases. In relevant part, the trial court stated: The probation revocation restitution fine is $220 in each case pursuant to 1202.44 of the Penal Code. That will be stayed pending successful completion of probation. Probation condition No. 18 in both cases states, Pay a restitution fine in the amount of $200.00, plus a ten percent (10%) administrative fee through Central Collections.
On November 19, 2008, after finding defendant violated probation in both cases, the trial court imposed judgment. The trial court stated as to case No. FMB700562: The 1202.4 and 1202.45 fines are $200. The latter is stayed pending successful completion of parole on that matter. The trial court stated as to case No. FMB700563: 1202.4 and 1202.45 fines are $200. The latter stayed pending successful completion of parole.
The amended abstract of judgment in case No. FMB700562 states: Restitution fine of $200.00 pursuant to PC 1202.4 to be collected by Department of Corrections. Restitution fine of $200.00 pursuant to PC 1202.45 stayed pending successful completion of parole. The amended abstract of judgment in case No. FMB700563, and the sentencing minute order in both cases, state: Rest Fine of $200 pursuant to 1202.4 PC payable to Rest Fund to be collected by DOC. Rest Fine of $200 pursuant to 1202.45 PC stayed pending successful completion of parole.
In neither case were the stayed probation revocation restitution fines imposed, or a court security fee imposed.
II. RESTITUTION FINES
Defendant contends it was error to impose restitution fines at sentencing and as a condition of probation. The People contend that it cannot be determined if the court was imposing a new section 1202.4 fine at sentencing or just memorializing the previously imposed fine as a part of the judgment. They do not oppose amending the abstracts of judgment to expressly indicate that the section 1202.4 fines and fees are as previously ordered: i.e., a $200 restitution fine under subdivision (b), plus a ten percent (10%) administrative fee pursuant to subdivision (l). The People note that trial court could not, and did not, impose duplicate section 1202.45 parole revocation fines because parole revocation fines are suspended until parole is revoked. Lastly, the People contend that the trial court erred in failing to lift the stay of the section 1202.44 probation revocation fine, and that the fine was erroneously set at $220 instead of $200. We agree with the People as to the section 1202.44 fine, and otherwise uphold the restitution.
Section 1202.4, subdivision (b), requires the court to impose a restitution fine in every case where a person is convicted of a crime. Further, when a defendant is granted probation and a restitution fine is imposed, the restitution fine survives if probation is subsequently revoked. (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) It is presumed that official duty has been regularly performed. (Evid. Code, 664.) A judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. [Citation.] As this court has stated, we apply the general rule that a trial court is presumed to have been aware of and followed the applicable law. [Citation.] (In re Julian R. (2009) 47 Cal.4th 487, 498-499.)
All the record shows is that in both cases the court ordered defendant to pay a $200 restitution fine on February 7, 2008, when it originally placed him on probation, and again on November 19, 2008, when it sentenced him in both cases. There is nothing in the record indicating that defendant ever paid these amounts, or that the trial court was not merely restating the previous order in each case. Furthermore, the abstracts of judgment list only one section 1202.4 restitution fine per case. Accordingly, we reject defendants contention that the trial court imposed duplicate restitution fines.
However, the points raised by the People concerning the probation revocation restitution fine are valid.
Section 1202.44 requires that the probation revocation restitution fine be set in the same amount as the section 1202.4 restitution fine, and requires that the fine become effective upon revocation of probation.
At the February 7, 2008, hearing the trial court set the probation revocation restitution fines at $220 while setting the restitution fines at $200. At the hearing on November 19, 2008, the trial court did not explicitly lift the stays on the probation revocation restitution fines, and neither the sentencing minutes nor abstracts of judgment in either case include the probation revocation restitution fine.
Accordingly, in both cases, the probation revocation restitution fine should be reduced to $200 and should be effectively imposed.
III. COURT SECURITY FEES
Although not raised by the parties, we note that the trial court did not impose the $20 court security fee in either case. Section 1465.8, subdivision (a)(1), provides in relevant part that, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . . (Italics added.)
This language is mandatory. Section 1465.8s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date. (People v. Alford (2007) 42 Cal.4th 749, 754, italics added.) This includes convictions in which the sentence was stayed pursuant to section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Where no fee is imposed at all the judgment should be modified on appeal to include the fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
Accordingly, in each case the judgment should be modified to include a $20 court security fee.
IV. DISPOSITION
The judgment is modified in both case Nos. FMB700562 and FMB700563 to include a fully effective probation revocation restitution fine of $200 pursuant to section 1202.44 and to include the imposition of a $20 court security fee pursuant to section 1465.8. The superior court clerk is directed to amend the November 19, 2008, sentencing minute orders in both cases to include the probation revocation restitution fines and court security fees. The superior court clerk is further directed to amend the abstracts of judgment in both cases to include the $20 court security fee and the $200 probation revocation restitution fine in box 11, and forward a corrected copy of each abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RICHLI
J.
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[1] All further statutory references are to the Penal Code unless otherwise stated.
