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The People v. Thomas Mario Almanza

December 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THOMAS MARIO ALMANZA, DEFENDANT AND APPELLANT.



(Super. Ct. No. 62-050229)

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

P. v. Almanza

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Thomas Mario Almanza entered a negotiated plea of no contest to second degree burglary of a vehicle in 2006.*fn1 [1] On appeal, he challenges the restitution fines imposed, and custody credits awarded, when he was ultimately sentenced to state prison in 2010. His contentions have merit, and we shall order the judgment amended.

DISCUSSION

I. The Restitution Fines

When the trial court initially granted probation in February 2006, it imposed a $200 fine payable to the State Restitution Fund (Pen. Code, § 1202.4, subd. (b))*fn2 [2] and stayed a $200 probation revocation restitution fine pursuant to section 1202.44.

When the court later found defendant had violated his probation and sentenced him to 16 months in state prison on December 16, 2010, it also fined him $400 pursuant to section 1202.4, subd. (b) and imposed a $400 restitution fine pursuant to section 1202.45, but stayed the latter pending defendant's successful completion of parole. No mention was made of the previously stayed probation revocation restitution fine, imposed pursuant to section 1202.44.

Defendant contends, and the People concede, that the trial court violated People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers) by imposing a second, larger restitution fine under section 1202.4 when it sentenced him to prison and by imposing a parole revocation fine in excess of statutory parameters.

We agree that Chambers prohibits the court from imposing a restitution fine at sentencing different from the one it originally ordered when it placed defendant on probation. (Chambers, supra, 65 Cal.App.4th at p. 823 [there is "no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation"]; see also People v. Arata (2004) 118 Cal.App.4th 195, 201-203 [trial court erred in imposing a second $800 section 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 correctly notes that the parole revocation fine imposed pursuant to section 1202.45 must be in the same amount as the restitution fine. We shall order both reduced to $200.

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.)*fn3 [3] 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 section 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 ...


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