P. v. Richardson

Filed 8/25/08 P. v. Richardson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. H. Morgan Dougherty, Judge. Affirmed as modified and with directions.

William J. Capriola, 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, Senior Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

On April 1, 2003, defendant and appellant Christopher Columbus Richardson was charged by felony complaint in case No. INF043687 with one count of inflicting corporal injury resulting in a traumatic condition upon a spouse or cohabitant after having previously been convicted of a domestic violence offense. (Pen. Code, 273.5, subd. (e).)^[1] On May 8, 2003, defendant pleaded guilty to the charged offense, requested immediate sentencing, and was placed on five years probation.

On September 26, 2005, defendants probation was revoked. On October 6, 2005, at the probation violation hearing, the trial court sentenced defendant to state prison for four years. The court, however, suspended the execution of the sentence and reinstated probation.

On April 25, 2006, probation was summarily revoked again. On May 11, 2006, following a formal hearing, the trial court found defendant in violation of probation.

On July 10, 2006, an information filed in case No. INF054613 charged defendant with (1) unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a) (count 1)); (2) receiving a stolen vehicle (Pen. Code, 496d, subd. (a) (count 2)); and (3) unlawful driving or taking of a vehicle after having been previously convicted of a vehicle theft violation (Pen. Code, 665.5, subd. (a); Veh. Code, 10851, subd. (a) (count 3)).

On January 22, 2007, an information filed in case No. INF056360 charged defendant with attempted unlawful driving or taking of a vehicle (Pen. Code, 664; Veh. Code, 10851, subd. (a) (count 1)) and receiving stolen property (Pen. Code, 496, subd. (a) (count 2)). It was also alleged that the two charged offenses were committed while defendant was released on bail or on his own recognizance. (Pen. Code,  12022.1.)

On January 25, 2007, all of the cases were resolved. In case No. INF043687, the sentence previously imposed of four years was executed. The court also ordered a restitution fine in the amount of $1,000 under section 1202.4, subdivision (b), and suspended a $1,000 parole revocation fine under section 1202.45. In case No. INF054613, defendant pleaded guilty to count 3 (unlawfully driving or taking of a vehicle after having been previously convicted of vehicle theft). The trial court sentenced him to one year in state prison to run consecutive to case No. INF043687. As to the final matter, case No. INF056360, defendant pleaded guilty to both counts. The trial court sentenced him to two years in state prison on count 2, plus a one-year concurrent state prison term on count 1.

On appeal, defendant contends, and the People agree, that the trial court erroneously imposed an additional restitution fine in case No. INF043687. For the reasons set forth below, we shall (1) modify the restitution and parole revocation fines imposed in case No. INF043687, and (2) remand the matter in case Nos. INF054613 and INF056360 for the trial court to clarify the amount of restitution and parole revocation fines imposed in those cases.

I

STATEMENT OF FACTS^[2]

A. Case No. INF043687

On March 27, 2003, defendant punched his girlfriend in the face causing her lips and cheeks to swell, and her lips to bleed. At the time of his arrest, defendant was on probation for inflicting corporal injury causing a traumatic condition.

B. Case No. INF054613

On April 25, 2006, officers went to defendants house to serve an arrest warrant on defendant. Officers requested to search the vehicles on defendants property. After defendant consented, officers found two stolen vehicles. At the time of the offense, defendant had a prior conviction for receiving a stolen vehicle.

C. Case No. INF056360

On November 3, 2006, Officer Paiz was dispatched to a residence where Deputy Croft was conducting an eviction. When Officer Paiz arrived, Deputy Croft informed him that a tenant named Bennett had contacted Deputy Croft regarding two individuals attempting to steal Bennetts car. After Bennett identified defendant as one of those individuals, Officer Paiz placed defendant under arrest. When Officer Paiz searched defendant, the officer found stolen credit cards in defendants possession.

II

ANALYSIS

A. The Trial Court Erroneously Imposed an Additional Restitution Fine

Defendant contends, and the People agree, that the trial court erroneously imposed an additional fine following revocation of probation in case No. INF043687. We agree with the parties.

When defendant was originally placed on probation in case No. INF043687, the trial court imposed a $200 restitution fine under section 1202.4, subdivision (b). At that time, the court did not impose the mandatory parole revocation fine under section 1202.45. On October 6, 2005, a probation violation hearing was conducted; defendant was found to be in violation of his probation. The court reinstated probation and suspended a four-year state prison sentence. At that hearing, there was no mention of either the restitution or the parole revocation fine.

On January 25, 2007, the trial court resolved all three cases. Under a plea agreement, defendant was sentenced to five years in state prison (four years in case No. INF043687, one year consecutive in case No. INF054613, and one year concurrent in case No. INF056360). The trial court imposed the following fines:

THE COURT: Court will impose a restitution fine of $1,000 and a parole violation fine of 1,000. Thats calculated based on the term of confinement of five years of $200 per year. The imposition of the parole violation fine is suspended pending any violation of probation.

Thereafter, before the hearing was concluded, the following colloquy took place between the court and the clerk:

THE CLERK: My understanding is you only imposed a restitution fine on the case ending in 613 or is that to be imposed on all?

THE COURT: Its imposed on the ones that I imposed the sentences on.

THE CLERK: Thats fine then. Its on all of the cases.

THE COURT: Thats how I arrived at the 1,000.

THE CLERK: So the 1,000 is to be imposed on all the cases?

THE COURT: On all the cases. Or is it 200 a piece? You could actually make it 200 a piece.

Notwithstanding this conversation, the minute order from the hearing in case No. INF043687 states that a restitution fine in the amount of $1,000 pursuant to section 1202.4, subdivision (b), was imposed and a parole revocation fine in the same amount pursuant to section 1202.45 was imposed and suspended unless parole is revoked. Moreover, the minute orders from the same hearing in the other two cases show that the trial court imposed a $1,000 restitution fine in case No. INF043687, but failed to indicate if the trial court imposed any parole revocation fine.

Similarly, the abstract of judgment in case No. INF043687 states that the trial court imposed a $1,000 restitution fine pursuant to section 1202.4, subdivision (b), and a $1,000 parole revocation fine pursuant to section 1202.45. However, the abstracts of judgment in the other two cases do not indicate that the trial court imposed either a restitution fine or parole revocation fine. Instead, the abstracts of judgment indicate that a restitution fine of $1,000 was imposed in case No. INF043687.

B. Case No. INF043687

Defendant contends, and the People agree, that the restitution and parole revocation fines may only be $200. We agree.

A restitution fine imposed at the time of conviction and granting of probation remains the same despite a future revocation of probation. Therefore, when probation is revoked, the trial court has no authority to impose a second restitution fine in a greater amount than the original fine. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.) (People v. Garcia (2006) 147 Cal.App.4th 913, 917.) In every case where a person is convicted of a crime and whose 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. This additional parole revocation restitution fine shall . . . be suspended unless the persons parole is revoked. ( 1202.45.)

Here, the trial court initially imposed a restitution fine of $200 upon defendants plea of guilty in case No. INF043687. Then, after probation was revoked and defendant was sentenced to four years in state prison, the trial court stated that it was imposing an $800 restitution fine ($200 for each year). Thereafter, before the hearing was concluded, the reporters transcript indicates that the trial court decided to impose only a $200 restitution fine in each of three cases. Nevertheless, the minute orders and abstracts of judgment in all three cases indicate that a $1,000 restitution fine was imposed in case No. INF043687. However, the initial $200 restitution fine remained in force despite the revocation of probation. (People v. Chambers, supra, 65 Cal.App.4th at p. 823.)

Therefore, the $1,000 restitution fine imposed in case No. INF043687 at the January 25, 2007, hearing pursuant to section 1204.4, subdivision (b), was not authorized and must be stricken. Also, since the corresponding parole revocation fine must be in the same amount as the restitution fine ( 1202.45; People v. Smith (2001) 24 Cal.4th 849, 853), the parole revocation fine must also be reduced to $200.

C. Case Nos. INF054613 and INF056360

With regard to case Nos. INF054613 and INF056360, the record is unclear as to the amount imposed for the restitution and parole revocation fines. Therefore, the matters must be remanded.

As provided above, there are various conflicts in the record as to what amount the trial court imposed as the restitution and parole revocation fines in case Nos. INF054613 and INF056360. At the outset, the reporters transcript indicates that a $1,000 restitution fine was imposed in case No. INF054613. However, later in the transcript, the court seems to have imposed a $200 restitution fine in all three cases. Nevertheless, the minute orders for case Nos. INF054613 and INF056360 indicate that no restitution fine was imposed and that a restitution fine was only imposed in case No. INF043687. Furthermore, the abstracts of judgment do not reflect that restitution or parole revocation fines were imposed in case Nos. INF054613 and INF056360. Instead, the abstracts of judgment reflect that a restitution fine was imposed in case No. INF043687 only.

Therefore, because it is unclear what amount of restitution and parole revocation fines the trial court intended to impose in case Nos. INF054613 and INF056360, these cases are remanded for the trial court to clearly state any fines it is imposing in each case.

III

DISPOSITION

In case No. INF043687, the judgment is modified by (1) striking the $1,000 restitution fine imposed at the January 25, 2007, hearing pursuant to section 1202.4, subdivision (b), and leaving in force the $200 restitution fine imposed at the time defendant was initially placed on probation; and (2) reducing the additional parole revocation fine imposed pursuant to section 1202.45 from $1,000 to $200. The trial court is directed to prepare an amended abstract of judgment reflecting the reduced fines and to forward a certified copy of the modified abstract to the Department of Corrections and Rehabilitation. ( 1213, 1216.)

As to case Nos. INF054613 and INF056360, the cases are remanded for the trial court to clarify the restitution and parole revocation fines imposed in each matter.

In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P. J.

We concur:

KING

J.

MILLER

J.

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

^[2] The statement of facts is taken from the respective probation reports and preliminary hearing transcripts because defendant pleaded guilty in all three cases.