P. v. Soto

Filed 10/15/08 P. v. Soto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan Harrell, Judge.

Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

On May 14, 2007, appellant John Anthony Soto pled no contest to infliction of corporal injury on a spouse or cohabitant (Pen. Code,  273.5, subd. (a)).^[1] The court placed appellant on three years probation and ordered, inter alia, that appellant pay a restitution fine of $200 pursuant to section 1202.4.

On July 23, 2007, appellant was arraigned for violation of probation. Following a contested hearing, the court found appellant violated his probation. On August 27, 2007, the court imposed a sentence of four years on the corporal injury conviction, a restitution fine of $800 ( 1202.4), and a parole revocation fine ( 1202.45) in the same amount. The court suspended the section 1202.45 fine pending successful completion of parole.

On appeal, appellant contends, and respondent concedes, the trial court erred in imposing the second restitution fine and the parole revocation fine must be reduced to $200. We will accept respondents concession and modify the judgment accordingly.

DISCUSSION^[2]

The first restitution fine was mandatory under section 1202.4, and it remained in effect following the revocation of appellants probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 823; People v. Downey (2000) 82 Cal.App.4th 899, 921.) However, the imposition of a second fine was unauthorized. (Downey, at p. 921.) Accordingly, we will strike the second restitution fine.

Section 1202.45 provides that when a court imposes a restitution fine under section 1202.4, it must also impose, and suspend pending successful completion of parole, a parole revocation fine in the same amount. Imposition of a section 1202.45 fine in excess of the restitution fine is an unauthorized sentence. (People v. Arata (2004) 118 Cal.App.4th 195, 203.) Accordingly, we will order the $800 parole revocation fine reduced to $200.

DISPOSITION

The judgment is modified by striking the $800 restitution fine imposed on August 27, 2007, and reducing to $200 the parole revocation fine. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation.

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^* Before Gomes, Acting P.J., Dawson, J. and Hill, J.

^[1] All statutory references are to the Penal Code.

^[2] Because the facts of the instant offense and probation violation are not relevant to the issues raised on appeal, we will forgo a recitation of those facts.