Opinion
NOT TO BE PUBLISHED
San Francisco Super. Ct., Nos. 2316365, 205671.
Lambden, J.
Defendant Jocelyn Wicker appeals a restitution fine and two fees imposed by the trial court as a part of the judgment against her. We affirm the imposition of the restitution fine. We strike the fees, which the parties agree were improperly imposed.
BACKGROUND
Defendant’s appeal requires that we summarily review her offenses. In 2008, defendant, faced with a multiple count felony complaint charging her with stalking, assault with a deadly weapon, violation of a restraining order and other misconduct, pleaded guilty to count three, assault by means likely to produce great bodily injury, and counts five and six, each charging defendant with violation of a restraining order. The court ordered defendant to stay away from three specific people for a period of 10 years pursuant to Penal Code section 646.9, subdivision (k), and to stay away from, and not harass, a fourth person.
All further statutory references are to the Penal Code unless otherwise stated.
On July 8, 2008, the court suspended imposition of sentence and placed defendant on probation for three years, with the conditions that she obey all laws, participate in a year of counseling, and abide by the stay away orders. The court also imposed a restitution fine pursuant to section 1202.4 as a condition of probation, and another $200 restitution fine pursuant to section 1202.44, which the court stayed subject to revocation of defendant’s probation. Pursuant to section 1465.8, the court imposed a $20 court security fee.
In July 2008, a petition to revoke probation was filed alleging defendant had violated the stay away order. In February 2009, following a contested hearing, the court found defendant had violated her probation. The court reinstated probation on the original terms and conditions, and added that defendant was to serve one year in county jail, be referred to “The Sister’s Program, ” and be on probation until December 28, 2011.
In October 2009, a second motion to revoke probation was filed based on defendant’s alleged stalking of a dating acquaintance, Bobby Rullo, and two of Rullo’s friends, and of violating restraining orders regarding Rullo. In April 2010, following a contested hearing, the court found that defendant violated the terms and conditions of her probation.
On May 4, 2010, the court sentenced defendant to serve the midterm of three years in state prison for count three of the original complaint, and concurrent terms of one year each for counts five and six. The court stated regarding fines and fees: “The previous restitution fine of $200 which was stayed is now imposed. There is an additional restitution fine of $200 which is stayed unless and until parole is revoked, a $30 court security fee, a $30 court facility fee.” The court’s minutes for the May 2010 hearing referred to these fines and fees as being imposed pursuant to sections 1202.44, 1202.45, 1465.8, and Government Code section 70373, subdivision (a), referred to as an “Immediate Critical Needs Assessment fee.” The minutes also state that “[d]efendant shall pay a restitution fine in the amount of $200 pursuant to PC 1202.4, ” which the court did not refer to at the hearing.
The subsequent abstract of judgment states that defendant must pay a “Court Security Fee of $30 per PC 1465.8”; $200 “per PC 1202.4(b) forthwith per PC 2085.5”; “$200 per PC 1202.45 suspended unless parole is revoked”; and “$200 per PC 1202.44, ” which was “now due, probation having been revoked.” It also states that defendant “shall pay ICNA fee.”
Defendant subsequently filed a timely notice of appeal.
DISCUSSION
Defendant argues that the court improperly imposed a second section 1202.4 restitution fine of $200, as well as court security and court facility fees, when it revoked her probation in May 2010. The People concede that the court cannot impose such a restitution fine twice, but contend defendant’s argument is not supported by the record. The People agree that the trial court improperly imposed the two fees. We agree with the People.
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, citing § 1260, People v. Smith (2001) 24 Cal.4th 849, 854, and In re Sandel (1966) 64 Cal.2d 412, 417-418.) With that in mind, we review the issues raised by the parties.
A. The $200 Restitution Fine
In July 2008, when the court suspended imposition of sentence and placed defendant on probation, it imposed two different $200 restitution fines. One was imposed pursuant to section 1202.4 and the other was imposed, but stayed, as a probation revocation restitution fine pursuant to section 1202.44.
According to defendant, the court erred when it purportedly imposed a $200 restitution fine pursuant to section 1202.4 for a second time in May 2010, upon revoking defendant’s probation. Defendant also argues this second restitution fine was an improper increase in his sentence that amounted to double jeopardy.
Several rules of law are relevant here. First, section 1202.4 provides that a restitution fine is to be imposed “where a person is convicted of a crime” (§ 1202.4, subd. (b)), and that “[i]n every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation.” (§ 1202.4, subd. (m).) Accordingly, as the People acknowledge, a court may not impose a section 1202.4 restitution fine both when it imposes a sentence that is stayed in favor of probation and when it revokes probation and sentences a defendant to prison. (People v. Guiffre, supra, 167 Cal.App.4th at p. 433, citing People v. Chambers (1998) 65 Cal.App.4th 819, 821-822; People v. Arata (2004) 118 Cal.App.4th 195, 201-202 [noting that the “ ‘triggering event for imposition of the restitution fine is... conviction, ’ ” and striking a second section 1202.4 restitution fine imposed after the revocation of probation pursuant to Chambers].)
Furthermore, once imposed, a restitution fine imposed pursuant to section 1202.4, subdivision (b) survives the revocation of probation. Section 2085.5 specifically provides that in “any case in which a prisoner owes a restitution fine imposed pursuant to... subdivision (b) of Section 1202.4, the Secretary of the Department of Corrections and Rehabilitation shall deduct” an amount of money within a specified range from the wages and trust account deposits of a prisoner, unless prohibited by federal law. (§ 2085.5, subd. (a); see also People v. Chambers, supra, 65 Cal.App.4th at p. 822 [stating pursuant to a previous version of section 1202.4 that “[e]ven if the restitution fine was imposed as a condition of probation, the statutes contemplated that it would survive the probationary term”]; People v. Arata, supra, 118 Cal.App.4th at pp. 201-202 [noting that, pursuant to Chambers, restitution fines survive the revocation of probation].)
Also, our independent research indicates that section 1202.4 restitution fines must be set forth in the abstract of judgment. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1523; People v. Hong (1998) 64 Cal.App.4th 1071, 1074-1084, cited approvingly in People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
Finally, section 1202.44 provides for imposition of an additional probation revocation restitution fine when imposing the restitution fine provided for in section 1202.4. Section 1202.44 states that “[i]n 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. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record.” (§ 1202.44.)
The record indicates that the trial court acted in accordance with these rules in imposing the section 1202.4 restitution fine. It imposed the section 1202.4 restitution fine in July 2008 as a condition of probation and at the same time imposed, and stayed, a separate “probation revocation restitution” fine. When the court revoked probation in May 2010, it stated in relevant part at the hearing that “[t]here is an additional restitution fine of $200 which is stayed unless and until parole is revoked.” Plainly, the court was referring to the parole revocation restitution fine imposed pursuant to section 1202.44, since the section 1202.4 fine had not been previously stayed.
The trial court’s minutes from this May 2010 hearing do state that “[d]efendant shall pay a restitution fine in the amount of $200 pursuant to PC 1202.4.” However, in light of the court’s rulings at hearing, which did not include imposition of a second section 1202.4 restitution fine, and the abstract of judgment discussed immediately below, this reference in the minutes appears to be a restatement of the section 1202.4 restitution fine imposed in 2008, which suggests the fine remains unpaid, although the record is silent on this issue.
Nothing in the abstract of judgment contradicts the court’s ruling or indicates the court imposed two section 1202.4 restitution fines. The abstract merely states that defendant must pay $200 “per PC 1202.4(b) forthwith per PC 2085.5, ” which is consistent with the rules we have summarized above.
Given this record, defendant has failed to show error. “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’ ”].) Accordingly, we reject defendant’s argument that we should strike her restitution fine. To avoid confusion, the trial court minutes of May 4, 2010 are corrected to reflect that the $200 restitution fine defendant was to pay pursuant to section 1202.4 was imposed on July 8, 2008. (People v. Guiffre, supra, 167 Cal.App.4th at p. 435.)
B. The Fees Challenged By Defendant
At the July 2008 hearing, the trial court imposed a $20 court security fee for each convicted count pursuant to section 1465.8. A section 1465.8 fee, or “charge” as it is now referred to in the statute (§ 1465.8, subd. (a); Stats. 2011, ch. 10, § 8), “shall be imposed on every conviction for a criminal offense” subject to certain exceptions that do not apply here. (§ 1465.8, subd. (a)(1); see also People v. Alford (2007) 42 Cal.4th 749, 759 [a fee imposed pursuant to section 1465.8 serves a nonpunitive purpose and does not violate federal or state prohibitions against ex post facto statutes].)
In May 2010, upon revoking probation, the court again imposed a section 1465.8 fee for each convicted count. The court specifically referred to a $30 fee at the May 2010 hearing, not the $20 fee imposed in July 2008, thereby indicating it was imposing the fee as enacted by the Legislature after the 2008 hearing. (Stats. 2009, ch. 342, § 5.) Therefore, the record indicates the court, rather than restating a previous and unpaid fee, was imposing a second fee after conviction, which second fee should be stricken. Nothing herein should be construed as striking the $20 court security fee imposed by the court in 2008, regarding which we make no ruling.
Defendant also challenges a $30 “court facility fee” for each convicted count imposed by the court at the May 2010 hearing pursuant to Government Code section 70373, subdivision (a), referred to in the court’s May 4, 2010 minutes as an “Immediate Critical Needs Assessment” fee and, apparently, as an “ICNA” fee on the abstract of judgment. This fee also “shall be imposed on every conviction for a criminal offense” subject to certain exceptions that do not apply here. (§ 70373, sub. (a)(1).) The court plainly imposed this fee for the first time in 2010, after conviction; the court did not mention any such fee in July 2008, and the statute relied upon by the court in 2010 did not become effective until January 1, 2009 (Stats. 2008, ch. 311, § 6.5). This $30 fee also must be stricken.
DISPOSITION
The trial court minutes of May 4, 2010 are corrected to reflect that the $200 restitution fine defendant is to pay pursuant to section 1202.4 was imposed on July 8, 2008. The court’s imposition of fees at the May 2010 hearing pursuant to Penal Code section 1465.8 and Government Code section 70373, subdivision (a) are stricken, and the trial court minutes of May 4, 2010 are corrected accordingly.
The trial court is ordered to prepare a modified abstract of judgment consistent with this opinion, including eliminating references to a $30 court security fee pursuant to Penal Code section 1465.8 and, if intended as a fee pursuant to Government Code section 70373, to an “ICNA” fee. The court shall forward a certified copy of this modified judgment to the Department of Corrections and Rehabilitation. So modified, the judgment is affirmed.
We concur: Kline, P.J., Haerle, J.