THE PEOPLE v. STEVEN CHRISTOPHER PERLE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

This is an appeal from a judgment imposed after termination of felony probation.   The appeal raises questions involving the fines imposed by the trial court.   We will modify the fines imposed and affirm the judgment, as modified.

On February 7, 2008, defendant and appellant Steven Christopher Perle pleaded no contest to one count of violation of Penal Code section 273.5, subdivision (a), based on his battery of a cohabitant.  (All further section references are to this code.)   At the sentencing hearing on March 21, 2008, the court suspended imposition of judgment and admitted appellant to formal probation.   In addition, the court imposed a $200 restitution fine pursuant to section 1202.4 and a $200 probation revocation restitution fine pursuant to section 1202.44.  (The latter fine did not become operative until probation was revoked, in accordance with the terms of section 1202.44.)   The court also imposed a $20 court security fee pursuant to section 1465.8.

After appellant's second violation of probation, the court sentenced him to prison.   At sentencing, appellant's custody credits were sufficient that he was immediately released on parole.   In addition to imposing the prison sentence, the court stated:  “He's ordered to pay a $200 restitution fine.   A $200 parole revocation fine will be imposed and suspended.   He's ordered to ․ pay a $30 courthouse security fee․”

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant contends the court did not have jurisdiction to impose a second section 1202.4 restitution fine at the time of the final sentencing hearing and, similarly, lacked jurisdiction to impose a new or increased court security fee.   Respondent contends the court did not indicate it was imposing a new section 1202.4 fine and was probably reiterating the original fine, but that, in any event, we have authority to modify the judgment to impose the required fines.   Respondent also contends we should correct the court's omission of an order requiring payment of the section 1202.44 probation revocation fine that had been imposed in 2008.

Whether the trial court intended merely to emphasize the fact that the original restitution fine remained unpaid or, instead, erroneously imposed a second fine (see People v. Chambers (1998) 65 Cal.App.4th 819, 822), “this court has the inherent power to correct the judgment to reflect what the law requires.”  (People v. Guiffre (2008) 167 Cal.App.4th 430, 435.)   That requirement is a single section 1202.4 fine in this case in the amount of $200.  (167 Cal.App.4th at p. 435.)

In addition, by operation of law, the probation revocation fine became “effective upon the revocation of probation.” (§ 1202.44.) Although this fine became effective at the time of the prison sentence, the abstract of judgment fails to note that requirement.

Finally, as respondent concedes, the court security fee at the time of the original order for probation in 2008 was $20.  (It is now $30.  (See Stats.2009-2010, 4th Ex.Sess., ch. 22, § 29.))   Section 1465.8 requires the imposition of the fine “on every conviction for a criminal offense.” (§ 1465.8, subd. (a)(1).)   Appellant was only convicted in 2008;  he was not convicted again for the same crime when probation was revoked in 2009.

DISPOSITION

The judgment in this case is modified to impose one court security fee of $20 pursuant to section 1465.8;  one restitution fine of $200 pursuant to section 1202.4;  one probation revocation restitution fine of $200 pursuant to section 1202.44, which became effective upon imposition of the prison sentence in 2009;  and one parole revocation fine pursuant to section 1202.45, suspended unless parole is revoked.   The superior court is directed to cause the preparation and appropriate distribution of an amended abstract of judgment reflecting these changes.   The judgment, as modified herein, is affirmed.

THE COURT