(Solano County Super. Ct. No. VCR184456, VCR202862)
The opinion of the court was delivered by: Needham, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Steven Boyd Gaines appeals from sentencing orders imposed after revocation of his probation in two cases. He contends he is entitled to additional presentence conduct credits under an amendment to Penal Code section 4019. He further contends that fines imposed under Penal Code sections 1202.4, 1202.44, and 1202.45 must be reduced. We will order the trial court to amend its sentencing orders and abstract of judgment as set forth in this opinion.
I. FACTS AND PROCEDURAL HISTORY
In June 2006, Gaines entered a plea of no contest to evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and vehicle theft (Veh. Code, § 10851, subd. (a)) in case number VCR184456. In July 2006, the court placed Gaines on three years probation, with conditions including a year in county jail, less 62 days presentence credit. The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), but did not explicitly impose the probation revocation fine mandated by Penal Code section 1202.44.*fn1
In January 2009, after being arrested on suspicion of taking or driving a stolen vehicle, Gaines admitted that he violated his probation. The court extended his probation in case number VCR184456 for an additional year, imposed a jail term of 120 days (with 92 days of credit for time served), and ordered that all prior terms and conditions of probation remain in full force and effect.
On May 28, 2009, Gaines entered a plea of no contest to the charge of vehicle theft with a prior vehicle theft conviction (§ 666.5) in a new proceeding, case number VCR202862. Based on that offense, Gaines also admitted a violation of his probation in case number VCR184456.
Gaines was sentenced in both cases on May 28, 2009. In case number VCR184456, the court reinstated and modified the previous term of probation by extending it for three years. The court ordered, "All prior orders remain in full force and effect, except as herein modified," indicating that the $200 restitution fine (previously imposed under § 1202.4, subd. (b)) remained in effect. As to case number VCR202862, the court suspended imposition of sentence and placed Gaines on probation for three years, on the condition that he serve a year in county jail, with 62 days credit. The court ordered a $200 restitution fine (§ 1202.4) and a $200 probation revocation fine, stayed pending successful completion of probation (§ 1202.44).*fn2
In February 2010, Gaines admitted violating his probation in both case number VCR184456 and case number VCR202862, by failing to "abstain from illegal drugs." The court revoked probation and continued Gaines' custody pending further proceedings.
On March 26, 2010, the court terminated probation in both cases, based on Gaines' poor performance on probation. In case number VCR202862, the court sentenced Gaines to the middle term of three years in state prison for violation of section 666.5. In case number VCR184456, the court sentenced Gaines to a two-year middle term on his conviction for evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and a concurrent two-year middle term on his conviction for vehicle theft (Veh. Code, § 10851, subd. (a)); the sentence in case number VCR184456 was to run concurrently with the three-year term imposed for Gaines' conviction in VCR202862. In each case, the court left the amount of presentence custody and conduct credits to be determined. The court also imposed a $600 restitution fine (§ 1202.4, subd. (b)) and a suspended $600 parole revocation fine (§ 1202.45), over defense counsel's objection that the prior fines had been $200.
Unlike the orders in May 2009, in which separate fines were imposed for the new second case, the March 2010 orders apparently imposed fines that covered both cases. The minute order in VCR202862 indicates a $600 restitution fine (§ 1202.4, subd. (b)) and $600 parole revocation fine, suspended unless parole is revoked (§ 1202.45). The minute order in VCR184456 also indicates a $600 restitution fine and a suspended $600 parole revocation fine. On both minute orders, however, the box next to the text "on each case" is not checked, suggesting that the $600 fines were to cover both cases. Indeed, at the sentencing hearing, the court clerk and the judge had the following exchange: "THE CLERK: Is the fine in both cases? [¶] THE COURT: The fine covers everything."
On April 5, 2010, in both cases, Gaines filed points and authorities arguing that recently amended section 4019, concerning presentence conduct credits, was retroactive and applicable to him. The People filed an opposition to Gaines' points and ...