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People v. Cropsey

May 18, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JENNELLE MARIE CROPSEY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Yuba County, Kathleen R. O'Connor, Judge. Affirmed. (Super. Ct. No. CRF06457).

The opinion of the court was delivered by: Cantil-sakauye, J.

CERTIFIED FOR PUBLICATION

Defendant Jennelle Marie Cropsey pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count one)*fn1 and driving with 0.08 percent or more of alcohol in her blood (Veh. Code, § 23152, subd. (b); count three). She was placed on probation on conditions including payment of a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 restitution fine suspended pending successful completion of probation (§ 1202.44). Following a first violation of probation, the court reinstated probation and dissolved the suspension of the $200 probation revocation fine. Following a third probation violation, the court sentenced defendant to state prison, suspended execution of sentence, and reinstated probation. The court "reimpose[d]" the $200 restitution fine and the $200 probation revocation restitution fine. It added a $200 restitution fine suspended unless parole is revoked. (§ 1202.45.)

On appeal, defendant contends the trial court erred by imposing "two separate restitution fines for the same conviction pursuant to [] section 1202.4, subdivision (b)," and by imposing "two separate restitution fines for the same conviction pursuant to [] section 1202.44." We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND*fn2

In May 2006, defendant was driving under the influence of alcohol. She became angered at the driving pattern of another motorist. As a result, she struck the other motorist, A.L., with a metal rod.

In August 2006, defendant pled no contest to assault with a deadly weapon and driving with 0.08 percent or more of alcohol in her blood. In exchange, other related counts were dismissed. Imposition of sentence was suspended and defendant was placed on probation for three years on the conditions, among others, that she pay a $200 restitution fine and a $200 restitution fine suspended pending successful completion of probation.

In November 2007, the trial court found that defendant had violated her probation in that she had pled no contest to a misdemeanor in an unrelated case. In December 2007, the court reinstated defendant on probation and dissolved the suspension of the $200 probation revocation fine, which then became due and payable.

In August 2008, an amended petition was filed alleging that defendant had violated her probation by (1) testing positive for marijuana, and (2) refusing to comply with her probation search condition. In September 2008, defendant admitted the allegations. In October 2008, probation was reinstated on the condition that she serve 44 days of incarceration with credit for 24 days.

In November 2008, a petition was filed alleging that defendant had violated her probation by failing to serve the required incarceration. In December 2008, she admitted the allegation.

In January 2009, the trial court sentenced defendant on count one to state prison for the low term of two years. Execution of sentence was suspended and defendant was reinstated on probation for four years commencing from September 2006. On count three, defendant was sentenced to 180 days of incarceration with credit for 44 days.

Defense counsel expressed his belief that defendant had paid all the victim restitution and restitution fines except perhaps the most recent ones. Defendant added that this was her understanding as well. The trial court responded: "I will reimpose the restitution amounts. If they've been paid, then, of course, I'm not asking for double payments." The probation officer noted that "[t]he supplemental [probation] report does not indicate the restitution has been paid in full."

The trial court then remarked: "I will reimpose the restitution fine in the amount of $200. [¶] I will reimpose the probation revocation restitution fine in the amount of $200. I will also impose the $200 restitution fine and suspend it. That would be the one for the parole since I have imposed a prison sentence and suspended execution."

The clerk's minutes indicate that defendant was ordered to pay the two unstayed $200 restitution fines. A handwritten notation indicates that the fines had been "previously imposed." Under the heading "Restitution to victim(s)," a handwritten arrow leads ...


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