Opinion
A118531
4-23-2008
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JAMES GRIMMER, Defendant and Appellant.
NOT TO BE PUBLISHED
Robert James Grimmer appeals from a judgment following the admission of a probation violation and imposition of sentence. His sole challenge is to the imposition of an increased restitution fine at the time of final sentencing. We reverse as to the amount of the fine only, direct the court to correct the abstract of judgment, and in all other respects affirm the judgment.
I. BACKGROUND
On January 31, 2006, the Marin County District Attorney filed an amended complaint in case No. SC143241A, charging appellant with a passel of crimes: two residential burglaries, attempted first degree residential robbery, personal use of a deadly weapon, assault by means of force likely to cause great bodily injury, unlawfully taking a motor vehicle, receiving stolen property, possession of methamphetamine, obstructing a police officer and giving false information to a police officer. Numerous allegations accompanied the charges. The same day appellant pleaded guilty to aggravated assault, automobile theft and receiving stolen property. The remaining counts were dismissed with Harvey waivers. (People v. Harvey (1979) 25 Cal.3d 754, 758.)
The court suspended imposition of sentence and placed appellant on three years of supervised probation. As well, it imposed a $200 restitution fine pursuant to Penal Code section 1202.4.
In January 2007, a complaint in case No. SC151724A was filed charging appellant with possession of heroin, a smoking device and a hypodermic needle or syringe. He pleaded guilty to all three counts. Appellant also admitted violating his probation in case No. SC143241A.
The court suspended imposition of sentence and granted supervised probation for three years in case No. SC151724A under Proposition 36. Additionally, probation was revoked and reinstated in case No. SC143241A on the condition that appellant serve 60 days in county jail.
In March 2007, the district attorney filed a petition to revoke probation. Appellant admitted to violating probation in both cases. This time the court did not reinstate probation. Instead, it sentenced appellant to the midterm of three years on the assault by means of force charge in case No. SC143241A, with consecutive eight-month terms for the unlawful taking of a motor vehicle and receiving stolen property charges. In addition, the court imposed a consecutive eight-month term for the possession of heroin charge in case No. SC151724A. Appellants total sentence was five years. In case No. SC143241A, the court imposed a restitution fine of $800 under section 1202.4, with a corresponding stayed parole restitution fine pursuant to section 1202.45. Corresponding fines of $100 were imposed in case No. SC151724A.
II. DISCUSSION
When the court first placed appellant on probation in case No. SC143241A, it ordered a $200 restitution fine under section 1202.4. However, upon revocation of probation and imposition of sentence, it quadrupled the fine to $800. This is not allowed.
California law requires imposition of a restitution fine when a person is convicted of a crime, irrespective of whether probation is granted. (§ 1202.4, subd. (b) [fine required unless compelling and extraordinary reasons militate against not doing so]; People v .Chambers (1998) 65 Cal.App.4th 819, 822.) The minimum fine for a felony is $200, maximum $10,000. (§ 1202.4, subd. (b)(1).) Where the defendant is granted probation, the court must make payment of restitution fines and orders imposed pursuant to section 1202.4 a condition of probation. (Id., subd. (m). Further, any restitution remaining unsatisfied at the end of the probationary term is enforceable by a victim as if it were a civil judgment. (Ibid., § 1214.)
Notwithstanding that a restitution fine is imposed as a condition of probation, the fine survives the probationary term. (People v. Arata (2004) 118 Cal.App.4th 195, 201; People v. Chambers, supra, 65 Cal.App.4th at pp. 822-823.) The Chambers court held that a trial court does not have authority to order a second restitution fine upon revocation of probation, because the fine imposed as a condition of probation remained in force despite the revocation. The court reviewed the statutes in effect when defendant was granted probation in 1993 as well as subsequent changes, concluding as follows: "There is nothing in the current statutory scheme to suggest any change in the Legislatures intent to have a restitution fine survive the revocation of probation. Indeed, the statutory scheme suggests otherwise. Restitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. (Pen. Code, § 1202.4, subd. (b).)" (People v. Chambers, supra, at p. 822.)
The People argue nonetheless that the trial court has authority to modify probation condition restitution fines, based on changed circumstances or new information, and we should treat the increased fine as a modification. In support of their argument, they cite (1) section 1203.3, subdivision (a) (court has authority to revoke, suspend or modify probation); (2) section 1203.3, subdivision (b)(4) (court may modify time and manner of probation term for purposes of measuring timely payment of restitution obligations); and (3) section 1203.1, subdivision (j) (should probationer violate any terms or conditions, court has authority to modify and change the same and to imprison the probationer).
First, the People have not explained how the present case differs from the numerous similar cases in which it conceded error under Chambers and its progeny. (See, e.g., People v. Garcia (2006) 147 Cal.App.4th 913, 917; People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337; People v. Johnson (2003) 114 Cal.App.4th 284, 306-307; People v. Downey (2000) 82 Cal.App.4th 899, 921.)
Second, this was not a probation modification proceeding pursuant to section 1203.3, which requires notice and a hearing prior to modifying a term or condition of probation.
Third, this was not a proceeding implicating section 1203.1, subdivision (j), concerning the courts authority when probation is violated but not revoked, and conditions are changed. Presumably, modification in these circumstances would likewise require notice and a hearing per section 1203.3.
Fourth, both statutes speak to the modification of probation conditions. Implicit in this scenario is the continuation of the probationary period, with the parallel continued power of the trial court to modify conditions and terms during that period. Here, probation was revoked and with revocation the court has no continuing authority to exercise its modification powers to change the terms and conditions of probation. The original restitution fine survived revocation and upon imposition of sentence the court had no authority to increase the fine or add a second fine. (People v. Garcia, supra, 147 Cal.App.4th at p. 917; People v. Arata, supra, 118 Cal.App.4th at pp. 202-203; People v. Johnson, supra, 114 Cal.App.4th at p. 307; People v. Chambers, supra, 65 Cal.App.4th at pp. 822-823.)
III. DISPOSITION
We conclude that the trial court lacked authority to increase to $800 the $200 restitution fine previously imposed in case No. SC143241A under section 1202.4, subdivision (b), and to impose a parole revocation fine in the amount of $800 under section 1202.45. Each must be reduced to $200. In all other respects the judgment is affirmed.
We concur:
Sepulveda, J.
Rivera, J. --------------- Notes: All statutory references are to the Penal Code.