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The People v. Joshua Jerome Hoyt

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


July 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSHUA JEROME HOYT, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62067739)

The opinion of the court was delivered by: Raye , P. J.

P. v. Hoyt CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Joshua Jerome Hoyt entered a negotiated plea of no contest to taking or driving a vehicle belonging to someone else (Veh. Code, § 10851, subd. (a)) and second degree burglary of a vehicle (Pen. Code, § 459).*fn1 When the trial court initially granted probation in March 2007, it imposed a $200 fine payable to the State Restitution Fund (Pen. Code, § 1202.4, subd. (b) (hereafter section 1202.4(b)) and stayed a $200 probation revocation restitution fine pursuant to Penal Code section 1202.44.

When the court later found defendant had violated his probation and sentenced him to two years in state prison on September 20, 2010, the court fined defendant $600 pursuant to section 1202.4(b), imposed a $600 restitution fine pursuant to section 1202.45, and stayed the latter pending defendant's successful completion of parole. No mention was made of the previously stayed probation revocation restitution fine pursuant to section 1202.44.

Defendant's sole contention on appeal is that the trial court violated People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers) by imposing "a second restitution fine" when it sentenced him to prison and by imposing a parole revocation fine in excess of statutory parameters. The People concede both errors.

We agree that Chambers prohibits the court from imposing a restitution fine different from the one it originally ordered when it placed defendant on probation. In Chambers, the defendant entered a no contest plea to first degree burglary. The trial court granted probation and, as a condition of probation, imposed a $200 section 1202.4(b) restitution fine. The trial court later revoked probation and sentenced the defendant to state prison, while imposing a $500 restitution fine pursuant to the same section. (Chambers, supra, 65 Cal.App.4th at p. 821.) The court in Chambers determined that the $500 restitution fine was unauthorized, declaring that there was "no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation." (Id. at p. 823; see also People v. Arata (2004) 118 Cal.App.4th 195, 201-203 [trial court erred in imposing second $800 § 1202.4 restitution fine after it had already imposed $600 restitution fine when the defendant was granted probation; second restitution fine struck from judgment].)

Defendant also correctly notes that the parole revocation fine imposed pursuant to section 1202.45 must be in the same amount as the restitution fine.

We also note the presence of another restitution fine error. Once a defendant's probation is revoked, the court must lift the stay of the probation revocation restitution fine. (§ 1202.44.)*fn2 At that point, the fine is due and payable, and the abstract of judgment should so reflect. (People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435 [imposition of previously stayed § 1202.44 probation revocation fine is mandatory upon revocation of probation with sentence to state prison].) "On motion of a party, . . . or on its own motion, the reviewing court may order the correction . . . of any part of the record." (Cal. Rules of Court, rule 8.155(c)(1); see also People v. Mitchell (2001) 26 Cal.4th 181, 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) Accordingly, the abstract of judgment must be modified to reflect that the $200 probation revocation restitution fine imposed in March 2007 is due. (Guiffre, supra, 167 Cal.App.4th at p. 435; § 1202.44.)

DISPOSITION

The judgment is modified to lift the stay on the $200 section 1202.44 fine and order it due and payable, to strike the unauthorized $600 restitution fine, and to reduce the parole revocation fine to $200. Thus, the abstract of judgment should reflect a $200 restitution fine (§ 1202.4(b)) and a $200 parole revocation fine (§ 1202.45). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: HULL , J. HOCH , J.


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