P. v. Jansen
Filed 7/26/12 P. v. Jansen CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A132681, 133220
(Sonoma County
Super. Ct. No. SCR565926)
Michael
Edward Jansen appeals from an order revoking his probation and executing his
second restitution fine under Penal Code section 1202.4, subdivision (b), and
by imposing and staying a parole revocation fine (Pen. Code, § 1202.45)
higher than the original restitution fine.
We will order the trial court to amend its sentencing order and abstract
of judgment as set forth in this opinion.
I. FACTS AND PROCEDURAL HISTORY
In
October 2009, Jansen entered a plea of no contest to charges that he inflicted
(Pen. Code, § 273.5, subd. (a)), made criminal threats (§ 422), and
terms for the purpose of sentence enhancements under section 667.5, subdivision
(b).
In
November 2009, the trial court sentenced Jansen to an aggregate term of
six years eight months in state
prison, suspended execution of sentence, and placed Jansen on formal
probation for four years. The court
further ordered Jansen to pay fines and fees including a $220 restitution fine
under section 1202.4, subdivision (b) (which included a 10 percent
“administration fee”
and a $220 restitution fine pursuant tosection 1202.44 (suspended unless probation was revoked).
Later
in November 2009, the court summarily revoked Jansen’s probation and, in
January 2010, found that Jansen had violated his probation based on his entry
of plea in another proceeding (case number SCR573802). The court reinstated Jansen’s probation with
an additional condition of imprisonment for one year in county jail, pending release
to the probation department for placement in a
effect.
In
February 2011, the court again found that Jansen had violated his probation
based on charges alleged in yet another proceeding (case number
SCR592899). In April 2011, the
court reinstated Jansen’s probation with an additional condition requiring him
to complete the Delancey Street rehabilitation
program. All other terms and
conditions remained in effect.
In
May 2011, the court found that Jansen had violated his probation by leaving the
Delancey Street facility without his probation officer’s permission. In June 2011, the court determined that
Jansen had also violated his probation by making criminal threats, threatening
a police officer, interfering with a California Highway Patrol officer, and
interfering with Sonoma County Jail staff.
In
July 2011, the court executed Jansen’s previously-suspended sentence of six years
eight months in state prison. The court
imposed a restitution fine of $880 under section 1202.4. The court also imposed a $880 restitution
fine under section 1202.45, suspended unless parole is revoked.
This
appeal followed.
II. DISCUSSION
As
mentioned, Jansen contends the court erred in imposing the second restitution
fine of $880 (§ 1202.4, subd. (b)), because the original restitution fine
survived the termination of his probation.
He further argues that the court erred in imposing and staying a parole
revocation fine of $880 (§ 1202.45), because it is in an amount higher
than the original restitution fine.
Respondent essentially concurs, but adds that the previously imposed
probation revocation fine is now due.
There
are three distinct fines at play here.
As of the date relevant here, section 1202.4, subdivision (b)(1)
provided for a restitution fine of
between $200 and $10,000 for a person convicted of a felony. (§ 1202.4, subd. (b)(1), as amended by
Stats. 2011, ch. 45, § 1, effective July 1, 2011.) When a person is placed on probation, section
1202.44 provides for a
the same amount as the restitution fine imposed under section 1202.4,
subdivision (b). The probation
revocation fine is suspended pending successful completion of probation. When a person is committed to
period of parole, section 1202.45 provides for a parole revocation restitution fine in the same amount as the
restitution fine imposed under section 1202.4, subdivision (b). The parole revocation fine is suspended
unless the person’s parole is revoked.
As
to the restitution fine (§ 1202.4), the amount cannot exceed what was
imposed when probation was previously granted, because the earlier fine
survived the revocation of probation and remained in effect. (People
v. Chambers (1998) 65 Cal.App.4th 819, 823; People v. Guiffre (2008) 167 Cal.App.4th 430, 434 (
therefore be reduced to $220.
As
to the parole revocation fine (§ 1202.45), the amount must be the same as
the restitution fine. The parole
revocation fine in this case must be reduced to $220.
Lastly,
as to the previously-imposed probation revocation fine (§ 1202.44), the
fine should no longer be suspended, since probation was revoked. The probation revocation fine of $220 is now
due. (Guiffre, supra, 167 Cal.App.4th at p. 435.)
Accordingly,
we will order that the trial court’s order of July 11, 2011, and the abstract
of judgment be amended to reflect a restitution fine of $220 (§ 1202.4,
subd. (b)) and a suspended parole revocation fine of $220
(§ 1202.45). We will further order
that the order and abstract reflect that the probation revocation fine of $220
(§ 1202.44) is now due.
III.
DISPOSITION
The
trial court shall revise its order of July 11, 2011, and amend the abstract of
judgment to reflect a restitution fine of $220 (§ 1202.4, subd. (b)(1))
and a suspended parole revocation fine of $220 (§ 1202.45), and to
indicate that a probation revocation fine of $220 under section 1202.44 is now
due, probation having been revoked. The
trial court shall forward a copy of the amended abstract of judgment to the
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
statutory references are to the Penal Code.
$220 parole revocation restitution fine pursuant to section 1202.45, suspended
unless parole was revoked.
