Filed 8/12/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE, C075938
Plaintiff and Respondent, (Super. Ct. No. 12F5677,
12F5678, 12F5679)
v.
LISA MARIE PRESTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Calaveras County, John E.
Martin, Judge. Affirmed as modified.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for
Plaintiff and Respondent.
This case raises a number of issues involving the proper application of the statutes
governing restitution fines, probation revocation fines and parole revocation fines. At its
core, this case requires us to consider how these fines should be applied when a sentence
is imposed but the trial court suspends execution and, alternatively, how these fines
1
should be applied when the trial court initially suspends imposition of sentence but later
imposes a sentence that includes a period of parole.1
This appeal arises from three separate cases. In each case the trial court granted
defendant probation. In the first case, the trial court suspended execution of sentence and
imposed a restitution fund fine. In the second and third cases, the trial court suspended
imposition of sentence and imposed a restitution fund fine and a probation revocation
fine. In September of 2013, the trial court revoked probation in all three cases and, in
each case, imposed an additional restitution fund fine of $300 and a parole revocation
fine of $300. Defendant Lisa Marie Preston raised a number of issues relative to the
imposition of these additional fines. We requested supplemental briefing on four
questions:
(1) Whether the trial court‘s failure to impose a parole revocation fine when
sentence was imposed and execution stayed in case Nos. SF091142A/12F5679
(case 1)2 was an unauthorized sentence.
(2) Whether the trial court was authorized to impose a parole revocation fine years
after it imposed the restitution fund fines in case Nos. SF112662A/12F5677
(case 2) and case Nos. SF117635A/12F5678 (case 3).
(3) Whether the trial court was authorized to impose both a probation revocation
fine and a parole revocation fine in cases 2 and 3.
(4) Whether the trial court erred in failing to lift the stays on the probation
revocation fines when it revoked defendant‘s probation in cases 2 and 3.
1 The issues relate only to the restitution fines to be paid to the Restitution Fund not to
direct victim restitution.
2 For ease of reference, the cases will be referred to as cases 1, 2 and 3 throughout the
opinion.
2
Taking each of these four questions in order, we conclude as follows: First, we
find that when the trial court imposes sentence and suspends execution, and the
suspended sentence includes a period of parole, the trial court must impose the parole
revocation fine at sentencing. Accordingly, the trial court‘s failure to do so here was an
unauthorized sentence that we will correct.
Second, we find that when the trial court initially suspends imposition of sentence
and orders a restitution fund fine, the trial court must impose a parole revocation fine
when it later imposes a sentence that includes a period of parole.
Third, we find when the sentence includes both a grant of probation and a sentence
with a period of parole, the trial court must impose both a probation revocation fine and a
parole revocation fine. Accordingly, we conclude that the imposition of parole
revocation fines was proper.
Fourth, the parties agree the trial court was required to lift the stays on the two
previously imposed probation revocation fines when it revoked probation in cases 2 and
3. We will order those stays lifted.
Finally, we agree with defendant that the trial court erred when it imposed a
second round of restitution fund fines in the amount of $900. Accordingly, we will strike
those fines.
As modified, we will affirm the judgment.
BACKGROUND3
Case 1 – In July 2005 defendant pleaded guilty to one count of forgery.
(Pen. Code, § 470.)4 The trial court sentenced her to three years in state prison. The trial
3 Because of the nature of the claims on appeal, a detailed recitation of the substantive
facts underlying defendant‘s convictions is unnecessary.
4 Undesignated statutory references are to the Penal Code.
3
court suspended execution of sentence and placed defendant on five years‘ formal
probation. The trial court also imposed a $200 restitution fund fine.5 (§ 1202.4.)
Case 2 – In January 2010 defendant pleaded guilty to another count of forgery.
(§ 470, subd. (d).) The trial court suspended imposition of sentence and placed defendant
on five years‘ probation, conditioned on her serving one year in jail. The trial court
imposed a $200 restitution fund fine (§ 1202.4) and a $200 probation revocation fine,
stayed unless probation was revoked (§ 1202.44).
Case 3 – In September 2011 defendant pleaded guilty to one count of burglary
(§ 459) and one misdemeanor count of false representation of identity to a peace officer
(§ 148.9, subd. (a)). The trial court suspended imposition of sentence and placed
defendant on five years‘ probation. The trial court imposed a $200 restitution fund fine
(§ 1202.4) and a $200 probation revocation fine, stayed unless probation was revoked
(§ 1202.44).
In September 2013 the probation department filed petitions to revoke defendant‘s
probation in all three cases. Following a hearing on all three petitions, the trial court
found the allegations true and sustained the petitions. The trial court revoked probation
in all three cases and sentenced defendant to an aggregate stipulated term of five years
four months in state prison. The trial court also 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.
DISCUSSION
This case raises a number of issues about the interplay of the statutes authorizing
restitution fines, and the mechanics of how those statutes work when the trial court
5 The trial court could not impose a probation revocation fine in this case. Section
1202.44 did not become effective until August 2004, and the subject offense was
committed in February of that year.
4
imposes sentence and suspends execution or suspends imposition of sentence and later
imposes a sentence with a period of parole. We are called upon in each instance to
interpret the statutory scheme and effectuate the Legislature‘s intent. At the outset, we
will set forth the statutes and the legal principles that govern our analysis.
Section 1202.4, subdivision (b), provides: ―In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.‖ As relevant in this case, section 1202.44 provides that: ―In every
case in which a person is convicted of a crime and a conditional sentence or a sentence
that includes a period of probation is imposed, the court shall, at the time of imposing the
restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional
probation revocation restitution fine in the same amount as that imposed pursuant to
subdivision (b) of Section 1202.4.‖ Similarly, section 1202.45, subdivision (a), provides:
―In every case where a person is convicted of a crime and his or her sentence includes a
period of parole, the court shall, at the time of imposing the restitution fine pursuant to
subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine
in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.‖ 6
As in any case involving statutory interpretation, our task is to determine the
Legislature‘s intent and effectuate the law‘s purpose. (White v. Ultramar, Inc. (1999)
6 Effective in 2013, section 1202.45, subdivision (b), added a postrelease community
supervision revocation restitution fine. (Stats. 2012, ch. 762, § 1; People v. Isaac (2014)
224 Cal.App.4th 143, 146.) The statute now provides: ―In every case where a person is
convicted of a crime and is subject to . . . postrelease community supervision under
Section 3451 . . . the court shall, at the time of imposing the restitution fine pursuant to
subdivision (b) of Section 1202.4, assess an additional postrelease community
supervision revocation restitution fine . . . in the same amount as that imposed pursuant to
subdivision (b) of Section 1202.4, that may be collected by the agency designated . . . by
the board of supervisors of the county in which the prisoner is incarcerated.‖ (§ 1202.45,
subd. (b).) The provisions of that subdivision are not implicated in this case.
5
21 Cal.4th 563, 572.) ―We begin by examining the statute‘s words, giving them a plain
and commonsense meaning. [Citation.] We do not, however, consider the statutory
language ‗in isolation.‘ [Citation.] Rather, we look to ‗the entire substance of the statute
. . . in order to determine the scope and purpose of the provision . . . . [Citation.]‘
[Citation.] That is, we construe the words in question ‗ ―in context, keeping in mind the
nature and obvious purpose of the statute . . . .‖ [Citation.]‘ [Citation.] We must
harmonize ‗the various parts of a statutory enactment . . . by considering the particular
clause or section in the context of the statutory framework as a whole.‘ [Citations.]‖
(People v. Murphy (2001) 25 Cal.4th 136, 142.)
― ‗If the language is clear and unambiguous there is no need for construction, nor
is it necessary to resort to indicia of the intent of the Legislature (in the case of a
statute) . . . .‘ ‖ (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) Despite this
directive, the literal meaning of the language of a statute is not untethered from the
statute‘s purpose. ―We are not prohibited ‗from determining whether the literal meaning
of a statute comports with its purpose or whether such a construction of one provision is
consistent with other provisions of the statute. The meaning of a statute may not be
determined from a single word or sentence; the words must be construed in context, and
provisions relating to the same subject matter must be harmonized to the extent possible.
[Citation.] Literal construction should not prevail if it is contrary to the legislative intent
apparent in the [statute] . . . .‘ ‖ (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th
644, 658-659.) ―The intent prevails over the letter, and the letter will, if possible, be so
read as to conform to the spirit of the act. [Citations.] An interpretation that renders
related provisions nugatory must be avoided [citation]; each sentence must be read not in
isolation but in light of the statutory scheme [citation]; and if a statute is amenable to two
alternative interpretations, the one that leads to the more reasonable result will be
followed [citation].‖ (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
6
When ―the legislative language is unclear or ambiguous, we may review available
legislative history to determine legislative intent. [Citations.] Such legislative history
can include bill analyses prepared by staff for legislative committees considering passage
of the legislation in question. [Citation.]‖ (People v. Taylor (2007) 157 Cal.App.4th 433,
437-438 (Taylor).) ―[A] wide variety of factors may illuminate the legislative design,
‗ ―such as context, the object in view, the evils to be remedied, the history of the time and
of legislation upon the same subject, public policy and contemporaneous construction.‖ ‘
[Citations.]‖ (Walters v. Weed (1988) 45 Cal.3d 1, 10.)
I.
The Trial Court Erred in Imposing Additional Restitution
Fund Fines (§ 1202.4) Upon Revocation of Probation
Defendant contends the trial court erred in imposing additional restitution fund
fines in all three cases. We agree.7
In the absence of extraordinary and compelling circumstances, when a person is
convicted of a felony, a restitution fine must be imposed, irrespective of whether
probation is granted. (§ 1202.4, subd. (b).) If probation is granted, payment of the
restitution fine must be made a condition of receiving probation. (§ 1202.4, subd. (m).)
A restitution fine is imposed as a condition of receiving probation and the imposition of
the fine survives the probationary term. (People v. Chambers (1998) 65 Cal.App.4th 819,
7 The People claim defendant expressly waived her right to appeal as part of her
stipulated sentence. We do not read the record as reflecting such a waiver. Rather,
during the sentencing hearing, the prosecutor stated a waiver of appellate rights was a
part of the sentencing agreement. The trial court asked defense counsel if that was
correct. Defense counsel began to explain to defendant her right to appeal and defendant
stated she ―didn‘t care.‖ The trial court then informed defendant she did not have to
waive her appeal rights. There is no advisement by the trial court of her right to appeal or
the consequences of waiving that right. There is also no written waiver of defendant‘s
appeal rights. On this record, we cannot find this constitutes a waiver of defendant‘s
appellate rights. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.)
7
822 (Chambers).) ―Furthermore, there is no provision for imposing a restitution fine
after revocation of probation.‖ (Ibid.) Despite the fact that additional sentencing may be
imposed upon the revocation of probation, ―[t]he triggering event for imposition of the
restitution fine is still conviction.‖ (Ibid.)
In Chambers, the defendant pleaded no contest to first degree burglary and was
granted probation. As a condition of that probation, the defendant was ordered to pay a
$200 restitution fine. (Chambers, supra, 65 Cal.App.4th at p. 821.) Four years later, the
trial court revoked the defendant‘s probation, sentenced her to state prison and imposed a
second restitution fine of $500. We held that because the first restitution fine remained in
effect, the trial court was without authority to impose the second restitution fine. (Id. at
p. 823.)
On this issue, the holding in Chambers is dispositive of the case before us. Here,
defendant pleaded guilty to forgery in 2005, another forgery in 2010, and burglary in
2011. In each case, the trial court granted her probation and ordered her to pay a $200
restitution fund fine as a condition of probation. Subsequently, the trial court revoked
defendant‘s probation, sentenced her to state prison, and imposed additional restitution
fund fines of $300 in each case. Because the trial court was without authority to impose
these additional $300 restitution fund fines, we will strike them. (Chambers, supra,
65 Cal.App.4th at p. 823.)
II.
The Trial Court Must Impose a Parole Revocation Fine (§ 1202.45) When the Sentence
Imposed Includes the Possibility of Parole and Execution of Sentence Is Suspended
In case 1, following her guilty plea, the trial court sentenced defendant to three
years in prison, suspended execution of the sentence and granted her probation. The trial
court imposed a $200 restitution fund fine but did not impose a parole revocation fine.
Defendant relies on People v. Hannah (1999) 73 Cal.App.4th 270 (Hannah) to
support her claim that the trial court was not authorized to impose a parole revocation
8
fine. In Hannah, the court concluded section 1202.45 does not apply when sentence is
imposed but execution is suspended and the defendant is placed on probation. (Hannah,
supra, at p. 274.) Relying on its earlier decision in People v. Oganesyan (1999)
70 Cal.App.4th 1178 (Oganesyan), in which the court addressed whether a section
1202.45 fine could be imposed in the case of a defendant receiving a sentence of life in
prison without the possibility of parole, the Hannah court found: ― ‗Section 1202.45
indicates that it is applicable to a ―person . . . whose sentence includes a period of
parole.‖ At present, defendant‘s ―sentence‖ does not allow for parole. When we apply a
commonsense interpretation to the language of section 1202.45 [citations], we conclude
that because the sentence does not presently allow for parole and there is no evidence it
ever will, no additional restitution fine must be imposed.‘ [Citation.] Similarly, in the
present case, defendant is not presently subject to a sentence which carries a period of
parole.‖ (Hannah, supra, at p. 274.) Several subsequent cases have disagreed with
Hannah.
In People v. Tye (2000) 83 Cal.App.4th 1398 (Tye), the court declined to follow
Hannah because the analysis relied extensively on Oganesyan, which involved a sentence
without the possibility of parole. (Id. at p. 1401.) Tye found that when a ―prison
sentence, including a period of parole, has been imposed and only the execution has been
suspended, . . . Penal Code section 1202.45 applies and the restitution fine may properly
be imposed.‖ (Tye, supra, at p. 1401, fn. omitted.) The court in People v. Calabrese
(2002) 101 Cal.App.4th 79 (Calabrese) agreed with Tye, stating: ―When execution of
sentence is suspended, the defendant‘s sentence comes within Penal Code section
1202.45 because, if ultimately executed, the sentence ‗includes a period of parole‘ which
could be revoked. [Citation.]‖ (Calabrese, supra, at p. 86.) Therefore, the Calabrese
court held ―when a prison sentence has been imposed, and only the execution of sentence
has been suspended, Penal Code section 1202.45 requires imposition of a restitution fine,
9
which then ‗shall be suspended unless the person‘s parole is revoked.‘ ‖ (Calabrese,
supra, at p. 87.)
We find the reasoning of Tye and Calabrese more persuasive than the reasoning
that underlies Hannah. ―[P]arole is a mandatory component of any prison sentence. ‗A
sentence resulting in imprisonment in the state prison . . . shall include a period of parole
supervision or postrelease community supervision, unless waived . . . .‘ (§ 3000, subd.
(a)(1).) Thus, [notwithstanding a small number of life crimes that expressly forbid
parole] a prison sentence ‗contemplates a period of parole, which in that respect is related
to the sentence.‘ [Citation.]‖ (People v. Nuckles (2013) 56 Cal.4th 601, 609.) When a
prison term is imposed, it usually includes a period of parole. ―Under section 1202.45, a
trial court has no choice and must impose a parole revocation fine equal to the restitution
fine whenever the ‗sentence includes a period of parole.‘ ‖ (People v. Smith (2001)
24 Cal.4th 849, 853.)
Defendant‘s sentence in case 1 included a period of parole and the trial court was,
therefore, required to impose a parole revocation fine when defendant was initially
sentenced. A parole revocation fine was ultimately imposed when probation was
revoked, but the amount of that fine did not match the amount of the restitution fine as
required by section 1202.45. This error constitutes an unauthorized sentence which may
be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354-355.) Therefore, we
will reduce the $300 parole revocation fine imposed on February 14, 2014, to $200.
III.
A. The Trial Court Must Impose a Parole Revocation Fine (§ 1202.45) in Every Case
Where the Sentence Includes a Period of Parole, Even When Sentencing Occurs
After Imposition of the Restitution Fund Fine (§ 1202.4)
In cases 2 and 3, the trial court suspended imposition of sentence and placed
defendant on probation. The trial court imposed a $200 restitution fund fine as required
by section 1202.4 and a corresponding probation revocation fine under section 1202.44.
10
Upon the revocation of probation, the trial court also imposed a parole revocation fine
under section 1202.45.
Defendant contends the trial court was not authorized to impose parole revocation
fines in these cases, because the statute explicitly requires that fine be assessed ―at the
time of imposing the restitution fine.‖ The People rely on People v. Andrade (2002)
100 Cal.App.4th 351 (Andrade) to support their claim that the trial court was authorized
to impose a probation revocation fine at the later date.
In Andrade, the trial court suspended imposition of sentence and placed defendant
on probation for five years. The trial court ordered defendant to pay a restitution fund
fine of $7,000. (Andrade, supra, 100 Cal.App.4th at p. 354.) Four years later, the trial
court revoked and terminated defendant‘s probation, sentenced him to prison, and
imposed a parole revocation fine of $7,000. (Ibid.) Andrade argued based on the plain
language of section 1202.45 that the parole revocation fine had to be imposed at the same
time as the restitution fund fine, not at the time sentence was imposed, four years later.
The Andrade court found the trial court ―implicitly restated‖ the restitution fund fine at
sentencing, and ―imposition of the . . . parole revocation fine therefore comports with the
‗at the time of‘ language.‖ (Andrade, at p. 357.) Defendant claims this holding was in
error because it ―ignores the plain language of the statute in favor of an intended result.‖
At first blush, defendant‘s reading of the statute appears correct and the statutory
language appears clear—the trial court is to assess the parole revocation fine at the time it
imposes the restitution fund fine. But defendant‘s reading disregards the first three words
of the statute: The requirement that a parole revocation fine be imposed ―in every case.‖
The trial court must impose a parole revocation fine ―[i]n every case where a person is
convicted of a crime and his or her sentence includes a period of parole.‖ (§ 1202.45,
subd. (a).) In a case such as this, where 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,
no trial court could comply with an entirely literal reading of the statute because the
11
phrases ―in every case‖ and ―at the time‖ are in conflict. We are faced with a statute with
two operative clauses and rigid adherence to the plain language prevents us from giving
operative effect to both.
A number of factors convince us that the Andrade court was correct when it
allowed a parole revocation fine to be imposed when sentence was imposed after the date
the original restitution fine was imposed.
First, we note that Andrade has been in effect since 2002. The Legislature has
amended section 1202.45 three times since 2002. ―When a statute has been construed by
the courts, and the Legislature thereafter reenacts that statute without changing the
interpretation put on that statute by the courts, the Legislature is presumed to have been
aware of, and acquiesced in, the courts‘ construction of that statute.‖ (People v. Bouzas
(1991) 53 Cal.3d 467, 475.)8
Second, to construe the statute as defendant proposes would create an
inconsistency in the treatment of cases in which the trial court suspends execution of
sentence and those in which the trial court suspends imposition of sentence. Under
defendant‘s interpretation of section 1202.45, when the trial court imposes a felony
sentence and suspends execution, defendant would be subject to a parole revocation fine.
In contrast, when the trial court initially suspends imposition of sentence, and later
imposes a felony sentence, defendant would never be subject to a parole revocation fine.
―There is no evidence of such an unusual legislative distinction and intention.‖
(People v. Hunt (2013) 213 Cal.App.4th 13, 20 (Hunt).) ―[W]e note that an interpretation
8 We recognize ― ‗[t]he presumption of legislative acquiescence in prior judicial
decisions is not conclusive in determining legislative intent. As we have also stated:
―Legislative silence after a court has construed a statute gives rise at most to an arguable
inference of acquiescence or passive approval . . . . But something more than mere
silence is required before that acquiescence is elevated into a species of implied
legislation . . . .‖ [Citations.]‘ ‖ (People v. Escobar (1992) 3 Cal.4th 740, 751.) In this
case, as discussed, below, there is more than mere legislative silence.
12
that excluded from the ambit of the section any case in which imposition of sentence was
suspended . . . would result in an absurdity. . . . We can discern, and [defendant] suggests,
no reason why the Legislature would have intended to create this distinction . . . .‖
(Taylor, supra, 157 Cal.App.4th at p. 438.)
Moreover, ―the legislative purpose of the entire statutory restitution scheme is to
recoup from prisoners and parole violators some of the costs of providing restitution to
crime victims. (Oganesyan, supra, 70 Cal.App.4th at p. 1184; see also Andrade, supra,
100 Cal.App.4th at pp. 356-357.) Restitution fines also serve the important objectives of
rehabilitation and deterrence. (People v. Jennings (2005) 128 Cal.App.4th 42, 57;
Stats.1994, ch. 1106, § 1, pp. 6547-6548.)‖ (People v. Soria (2010) 48 Cal.4th 58, 65-66
(Soria).) Giving effect to the ―in every case‖ directive contained in sections 1202.4,
1202.45 and 1202.44 serves all of these objectives. ― ‗The phrase ―in every case‖ was
apparently taken from the 1982 voter initiative called the Victim‘s Bill of Rights. The
initiative added article I, section 28, subdivision (b) to the California Constitution, which
established the right of crime victims to receive restitution directly ―from the persons
convicted of the crimes for losses they suffer.‖ [Citation.] The new provision stated, ―It
is the unequivocal intention of the People of the State of California that all persons who
suffer losses as a result of criminal activity shall have the right to restitution from the
persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered
from the convicted persons in every case, regardless of the sentence or disposition
imposed, in which a crime victim suffers a loss, unless compelling and extraordinary
reasons exist to the contrary.‖ [Citation.]‘ ‖ (Soria, supra, 48 Cal.4th at p. 65, fn. 7,
italics added.) Elevating the procedural timing of the fines over the substantive mandate
that the fines be imposed in every case does not advance these legislative objectives.
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
13
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. This interpretation of the statutes allows us to
best effectuate the objectives of the statutes and leads to the most reasonable result.
B. The Trial Court Must Impose Both a Probation Revocation Fine (§ 1202.44) and a
Parole Revocation Fine (§ 1202.45) When There is Both a Grant of Probation and
a Sentence with a Period of Parole
Defendant relies on Hunt to argue that the trial court was not authorized to impose
both probation and parole revocation fines.
In Hunt, the trial court sentenced defendant to prison, suspended execution of
sentence, and placed defendant on probation. (Hunt, supra, 213 Cal.App.4th at p. 15.)
The trial court imposed a restitution fund fine, and imposed and stayed a parole
revocation fine, but did not impose a probation revocation fine. (Ibid.) Hunt found the
trial court erred in failing to impose the probation revocation fine, but went on to
conclude that the trial court could not impose both the probation revocation fine and the
parole revocation fine. Hunt reasoned that to allow the imposition of both fines would
result in treating cases where imposition of sentence is suspended differently from cases
where execution of sentence is suspended. ―To construe the statutory framework
differently would require all three restitution fines be imposed when the execution of
sentence is suspended. But when the imposition of sentence is suspended, under this
view, only two restitution fines need be imposed. Under this hypothesis, only the section
1202.4, subdivision (b)(1) restitution fine and section 1202.44 probation revocation
restitution fine must be imposed (and stayed) when the imposition of sentence is
suspended. There is no evidence of such an unusual legislative distinction and intention.
(See Taylor, supra, 157 Cal.App.4th at pp. 438-439 [there is no evidence of a legislative
intent in adopting § 1202.44 to treat suspension of imposition or execution of sentence
differently in probation cases].)‖ (Hunt, supra, 213 Cal.App.4th at pp. 19-20.)
14
We agree with Hunt and Taylor, that there is no evidence the Legislature intended
to treat suspended imposition differently than suspended execution. But we disagree with
Hunt’s conclusion that imposing both revocation fines results in disparate treatment of
those procedural approaches. Hunt’s concern that all three fines can be imposed only
when execution is suspended ignores Andrade’s holding that a parole revocation fine
must be imposed whenever the ultimate sentence includes a period of parole. As
explained above, we agree with Andrade. For this reason, we conclude that all three fines
can be imposed regardless of whether the trial court suspends imposition or suspends
execution of sentence.
When execution of sentence is suspended, the court must impose a restitution fund
fine, a probation revocation fine, and a parole revocation fine. The latter two fines are
stayed. If defendant successfully completes probation, she will only be subject to the one
restitution fund fine. She will be subject to the other fines only if probation or parole is
revoked. When imposition of sentence is suspended, a court must impose a restitution
fund fine and a probation revocation fine. If defendant successfully completes probation,
she will only be subject to the one restitution fund fine, not the revocation fine. If
probation is revoked, and the sentence imposed includes a period of parole, the court will
then impose a parole revocation fine. In both cases, a defendant only has to pay the
parole and probation revocation fines if she fails to successfully complete parole and/or
probation. The fact that, when the trial court suspends imposition of sentence, the three
fines will not be imposed on the same day does not alter our conclusion.
As discussed above, there is also evidence the Legislature intended all three
restitution fines to be imposed. By their explicit terms, each statute requires the trial
court impose the fine in every case.
Furthermore, as noted above, the purpose of the entire statutory scheme is to
provide for compensation of crime victims (Andrade, supra, 100 Cal.App.4th at pp. 356-
357), rehabilitate defendants, and deter future criminality. (Soria, supra, 48 Cal.4th at
15
pp. 65-66.) Section 1202.44 was specifically enacted ―to recoup more restitution fines
and increase revenue to the Restitution Fund.‖ (Assem. Com. on Public Safety, Analysis
of Sen. Bill No. 631 (2003-2004 Reg. Sess.) as amended Mar. 30, 2004, p. 1.) These
legislative objectives are furthered by imposing all three fines in appropriate cases. We
conclude that, notwithstanding the earlier imposition of probation revocation fines, the
imposition of additional parole revocation fines was proper. As discussed above, and
required by section 1202.45, we will order the parole revocation fines reduced to $200 to
match the restitution fund fines.
IV.
The Trial Court Was Required to Lift the Stays on the Two Probation Revocation
Fines (§ 1202.44) When Probation Was Revoked
In cases 2 and 3, the trial court imposed a probation revocation fine under section
1202.44. The fine under section 1202.44 is stayed, unless probation is revoked. 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.) The
parties agree this is an unauthorized sentence subject to correction on appeal. (Ibid.)
Accordingly, we will order the stay on the probation revocation fines lifted.
16
DISPOSITION
In all three cases (case Nos. SF091142A/12F5679, case Nos.
SF112662A/12F5677, and case Nos. SF117635A/12F5678) the additional $300
restitution fund fines under section 1202.4, imposed on February 14, 2014, are stricken.
In cases 2 and 3 (case Nos. SF112662A/12F5677 and case Nos. SF117635A/12F5678)
the stays on the probation revocation fines, imposed on January 13, 2010, and
September 26, 2011, are lifted. In all three cases (case Nos. SF091142A/12F5679, case
Nos. SF112662A/12F5677, and case Nos. SF117635A/12F5678) we order the parole
revocation fines of $300 reduced to $200. The trial court is directed to prepare an
amended abstract of judgment and to forward a certified copy of the amended abstract to
the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.
RENNER , J.
We concur:
MAURO , Acting P. J.
HOCH , J.
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