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Name: People v. Preston
Case #: C075938
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/12/2015
Summary

Trial court erred by imposing new restitution fund fines (Pen. Code, § 1202.4) when it revoked probation because the original restitution fund fines remained in effect. This appeal involved three separate cases. In 2005, Preston pled guilty to forgery (case 1). The trial court sentenced her to three years in prison, suspended execution of sentence, placed her on probation, and imposed a $200 restitution fund fine (no probation revocation fine could be imposed because Pen. Code, § 1202.44 was not effective at the time of the offense). In 2010, Preston pled guilty to another forgery count (case 2). The trial court suspended imposition of sentence, placed her on probation, imposed a $200 restitution fund fine, and imposed and stayed a $200 probation revocation fine (Pen. Code, § 1202.44). In 2011, Preston pled guilty to burglary and falsely representing her identity to police (case 3). The trial court suspended imposition of sentence, placed her on probation again, imposed a $200 restitution fund fine, and imposed and stayed a $200 probation revocation fine. In 2013, the probation department filed a petition to revoke her probation in all three cases. The trial court sustained the petition, sentenced Preston to prison, and imposed $900 in additional restitution fund fines and $900 in new parole revocation fines ($300 in each case). The trial court did not lift the stays on the probation revocation fines in case 2 or 3. Preston appealed arguing the imposition of $900 in new restitution fund fines was unauthorized. Held: New restitution fund fines stricken. In People v. Chambers (1998) 65 Cal.App.4th 819, 822, the court held that a trial court was without authority to impose a second restitution fine upon revocation of probation because the original restitution fine (imposed when probation was granted) remained in effect. Accordingly, the $900 in new restitution fund fines imposed by the trial court in this case must be stricken.

Trial court must impose a parole revocation fine (Pen. Code, § 1202.45) when the sentence imposed includes the possibility of parole and execution of sentence is suspended. Agreeing with People v. Tye (2000) 83 Cal.App.4th 1398, and People v. Calabrese (2002) 101 Cal.App.4th 79, and disagreeing with People v. Hannah (1999) 73 Cal.App.4th 270, the court held that a parole revocation fine must be imposed and stayed any time the trial court imposes a prison sentence but suspends execution of it. Here, Preston was sentenced to three years in state prison for the 2005 forgery offense, but the trial court suspended execution of that sentence and placed her on probation. It did not impose and stay a parole revocation fine. This was error. Since a prison sentence was imposed, under Tye and Calabrese, the trial court was required to impose (and stay) a parole revocation fine of $200.

A trial court must impose a parole revocation fine (Pen. Code, § 1202.45) in every case where the sentence includes a period of parole, even when sentencing occurs after imposition of the restitution fund fine. The trial court suspended imposition of sentence in the 2010 and 2011 cases and placed Preston on probation. A restitution fund fine and probation revocation fund fine were imposed in each case. No parole revocation fine was imposed when the court suspended execution of sentence. However, after revoking Preston’s probation and sentencing her to prison, the court imposed (and stayed) a parole revocation fine. This was proper despite the fact section 1202.45 explicitly states that a parole revocation fine must be imposed at the same time as the restitution fund fine. (People v. Andrade (2002) 100 Cal.App.4th 351.) “The mandatory nature of the statutes, the clear language requiring the fines be imposed in every case, the overriding purpose of the entire statutory scheme, and the legislative inaction in the face of Andrade all convince us that the trial court must impose the parole revocation fine at the time sentence is imposed, irrespective of whether there is a lapse of time between the imposition of the restitution fund fine and the imposition of a sentence that includes a period of parole.” The parole revocation fines were reduced to $200 to match the restitution fund fines. (See Pen. Code, § 1202.45, subd. (a).)

The trial court was required to lift the stays on the two probation revocation fines (Pen. Code, § 1202.44) when defendant’s probation was revoked. In the 2010 and 2011 cases, the trial court imposed probation revocation fines, and stayed the fines unless probation was revoked. But after revoking Preston’s probation and sentencing her to prison, the trial court never lifted the stay on the probation revocation fines. This was error. Once probation is revoked, imposition of the fine under section 1202.44 is mandatory and the court must lift the stay. (People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.)