Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Nos. VA100877, TA079930, John J. Cheroske, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Dwayne Dickson appeals from a judgment entered following a finding that he was in violation of probation. Appellant contends that the trial court erred in imposing increased restitution and parole revocation restitution fines and a laboratory analysis fee following the revocation of his probation. Appellant’s second contention is that he is entitled to additional presentence custody credits based on the amendment to Penal Code section 4019, which became effective January 25, 2010. Respondent agrees that the trial court erroneously imposed the fines but disagrees that the laboratory analysis fee was erroneous. We modify only the restitution and parole revocation fines and affirm in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
I. Case No. TA079930
In December 2005, appellant entered into an agreement to plead no contest to a domestic violence count. (Pen. Code, § 273.5.) Imposition of appellant’s sentence was suspended, and appellant was placed on five years of formal probation. Appellant was ordered to pay a $200 restitution fine pursuant to Penal Code section 1202.4 and a $20 court security fee, and he was ordered to follow numerous other conditions of probation.
II. Case No. VA100877
Appellant was arrested in May 2007 when a Los Angeles County deputy sheriff stopped appellant for driving a car with no license plates and found cocaine and a crack cocaine pipe in the car. Appellant was charged by information with three counts: count one, possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); count two, possession of a smoking device (Health & Saf. Code, § 11364); and count three, being an unlicensed driver (Veh. Code, § 12500). It was further alleged that appellant had suffered numerous prior convictions within the meaning of Penal Code section 667.5.
In August 2007, after being informed of and waiving his rights, appellant entered no contest pleas to all three counts and admitted the allegations of prior convictions. The trial court explained that it would sentence appellant to the high term of three years on count one, plus one year pursuant to Penal Code section 667.5 for one of appellant’s prior convictions, but suspend the execution of his four-year state prison sentence, subject to certain conditions. The court expressed its intent to dismiss three of the one-year prior convictions pursuant to Penal Code section 1385. Appellant admitted to violating probation in case number TA079930, and the court explained that probation in that case would be revoked and reinstated.
At the sentencing hearing, the court imposed the four-year sentence and suspended execution of the sentence, on the condition that appellant complete one year in a residential drug treatment program, as agreed upon earlier. The court explained that if appellant failed to complete the program, he would be found in violation of his probation and sent to state prison. Appellant was placed on three years of formal probation, under numerous terms and conditions, and ordered to serve 134 days in county jail, with credit for all 134 days. The court imposed a restitution fine of $200, a $20 security fee, and a $50 laboratory analysis test fee. The court did not impose the probation revocation restitution fine mandated by Penal Code section 1202.44. The court did, however, discuss the parole revocation restitution fine of Penal Code section 1202.45, telling appellant that, “[i]n case you are ever sent to state prison, there will be a $200 parole revocation fine imposed. But it will be stayed.” The court also reinstated appellant’s probation in case number TA079930.
III. Revocation of Probation
In April 2009, a probation revocation hearing was held in case number TA079930. A deputy sheriff testified that he saw appellant sitting in a car, holding a pipe used to smoke cocaine that was later found to have rock cocaine inside. Appellant testified that he was sitting in his car with a companion when the police approached him, and that neither he nor his companion had any cocaine with them.
The court found appellant in violation of probation, revoked his probation, and imposed the previously-suspended sentence in case number VA100877 of four years. The court awarded appellant a total of 351 days of custody credit. The court also imposed an $800 restitution fine, imposed and suspended an $800 parole restitution fine, and imposed a $50 lab fee, a $20 court security charge, a $20 DNA fee, and a $30 court construction fee. Appellant filed a notice of appeal.
DISCUSSION
I. Imposition of Fine and Fee
Appellant contends that the trial court’s imposition of the $800 restitution fine, the suspended $800 parole restitution fine, and the $50 laboratory analysis fee violates People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers). Respondent concedes as to the restitution fine and the parole restitution fine, and we agree.
Although appellant did not challenge the fines at the time of sentencing, a claim that a sentence is unauthorized is reviewable regardless of whether an objection was raised. (People v. Smith (2001) 24 Cal.4th 849, 852.)
We need not address appellant’s contention that a second $50 laboratory analysis fee was unauthorized and should be stricken. As reflected in the abstract of judgment, only one $50 fee was imposed.
In Chambers, the defendant pled no contest to first degree burglary and was granted probation and ordered to pay a $200 fine pursuant to Penal Code section 1202.4. When her probation subsequently was revoked, the trial court sentenced her to prison and imposed a $500 restitution fine. On appeal, the court held that “a restitution fine imposed at the time probation is granted survives the revocation of probation” and that the imposition of a second restitution fine when probation is revoked is unauthorized. (Chambers, supra, 65 Cal.App.4th at pp. 820-821.) The court accordingly modified the judgment by striking the $500 restitution fine imposed when the trial court revoked the defendant’s probation, leaving in place the earlier $200 restitution fine. (Id. at p. 823; see also People v. Arata (2004) 118 Cal.App.4th 195, 201 [following Chambers].)
Appellant’s contention that this case falls squarely within Chambers is correct. The $200 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. [Citation.]” (People v. Garcia (2006) 147 Cal.App.4th 913, 917.) The $800 restitution fine and the $800 parole revocation restitution fines accordingly must be reduced to the original $200 amounts. (Id. at p. 918.)
Although the parties do not raise this issue, Penal Code section 1202.44 requires the imposition of a probation revocation restitution fine when probation is imposed. The trial court failed to orally impose and stay this fine when it placed appellant on probation at the 2007 hearing. “[T]his error did not involve a discretionary sentencing choice. [Citation.] Under section 1202.4[4], a trial court has no choice and must impose a [probation] revocation fine equal to the restitution fine” whenever the court imposes a conditional sentence or a sentence that includes a period of probation. (People v. Smith (2001) 24 Cal.4th 849, 853.) Although People v. Smith addressed the mandatory parole revocation fine of section 1202.45, its principle is applicable here. Accordingly, under our inherent authority to correct an unauthorized sentence, we modify the judgment to reflect the imposition of a $200 probation revocation restitution fine pursuant to Penal Code section 1202.44. (Id. at pp. 853-854; People v. Crooks (1997) 55 Cal.App.4th 797, 811.)
The statute provides: “In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (Pen. Code, § 1202.44 [emphasis added].) The probation revocation restitution fine is customarily imposed and stayed at the time the defendant is placed on probation. Where, as here, the defendant’s probation is revoked, the fine then becomes due and payable. (People v. Guiffre (2008) 167 Cal.App.4th 430, 435.)
II. Penal Code section 4019
Penal Code section 4019, subdivisions (b) and (c), provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution’s rules and regulations. In 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, amended subdivisions (b) and (c) of section 4019 to provide for the accrual of presentence credit at twice the previous rate, with certain exceptions. (See Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Appellant contends that he is entitled to additional conduct credits because the amendment to Penal Code section 4019 should apply retroactively. California courts are divided on the question of whether the amendment applies retroactively or prospectively. We conclude that it does not apply retroactively and that appellant accordingly is not entitled to additional custody credits.
The California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990 (2d Dist., Div. Four), review granted Sept. 22, 2010, S184957. (See also, e.g., People v. Landon (2010) 183 Cal.App.4th 1096, (1st Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (2d Dist., Div. One), review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354 (3d Dist.), review granted June 9, 2010, S181963; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 182 Cal.App.4th 535 (5th Dist.), review granted June 9, 2010, S181808.)
Section 3 of the Penal Code provides: “No part [of the Penal Code] is retroactive, unless expressly so declared.” Thus, “‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) “To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration....” (People v. Nasalga (1996) 12 Cal.4th 784, 792.)
Where, as here, there is no express statement of legislative intent, we look to other factors to determine legislative intent. (In re Estrada (1965) 63 Cal.2d 740, 744.) In re Estrada addressed an amendment reducing the penalty for escape. The court held that the amendment applied retroactively, reasoning that “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.” (Id. at p. 745.) We believe, however, that increasing the rate at which credits are accrued does not represent a legislative determination that a prior punishment was too severe.
We note that, elsewhere in Senate Bill No. 3X 18, the Legislature expressly provided for limited retroactive application of enhanced conduct credits for prison inmates who have completed training as firefighters after July 1, 2009. (See Pen. Code, § 2933.3, as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 41.) The Legislature thus demonstrated that it could, if it wished, provide for the amendment to section 4019 to have retroactive effect. Its failure to do so gives rise to the inference that it did not so intend. Finding no clear and compelling implication that the Legislature intended the amendment to apply retroactively, we conclude that the amendment applies prospectively and reject appellant’s claim.
DISPOSITION
The judgment is modified by striking the $800 restitution fine, leaving in force the $200 restitution fine originally imposed pursuant to Penal Code section 1202.4. The $800 parole revocation restitution fine imposed and stayed pursuant to Penal Code section 1202.45 is reduced to $200 and, as modified, is imposed and stayed. The sentence is corrected by imposing a $200 probation revocation restitution fine pursuant to Penal Code section 1202.44. All other fines as reflected in the abstract of judgment remain the same. In all other respects the judgment is affirmed.
We concur: WILLHITE, Acting P.J. SUZUKAWA, J.