People v. Maravilla CA4/2 ( 2015 )

Filed 10/7/15 P. v. Maravilla CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061418
v. (Super.Ct.No. FVI1304147)
ANDY JOSUE MARAVILLA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed as modified.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and A.
Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant, Andy Josue Maravilla, appeals from a judgment of
conviction of assault with a deadly weapon and from the order granting probation dated
May 30, 2014. He contends the trial court exceeded its authority in a subsequent
probation revocation proceeding when it imposed a restitution fine pursuant to Penal
Code section 1202.4,1 in addition to the restitution fine ordered in the judgment from
which he appeals. The People agree that a second restitution fine would be unauthorized.
However, the People argue that this court need not strike either fine because the notation
in the minute order for the revocation hearing merely reflects the fine imposed at the
sentencing hearing, rather than improperly imposing a second parole revocation fine. We
exercise our discretion to treat the notice of appeal as timely filed regarding the second
restitution fine and order the minute order modified to clarify that it is a mere restatement
of the fine imposed earlier.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with, and convicted by a jury of, assault with a deadly
weapon. (§ 245, subd. (a)(1).) At sentencing on May 30, 2014, he was granted probation
and ordered to pay a $300 restitution fine pursuant to section 1202.4. The order
specifically provides that the restitution fine and other fines and fees “are to remain in
1 All further statutory references are to the Penal Code unless otherwise indicated.
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effect until paid in full . . . and are not to be discharged upon termination of probation.”
Defendant filed his notice of appeal on June 18, 2014.
In preparing the clerk’s transcript for this appeal, the clerk included documents
subsequent to the judgment appealed from, and subsequent even to defendant’s notice of
appeal, including the order of June 26, 2014, revoking probation and sentencing
defendant to state prison. Under the heading, “FINDINGS/ADVISALS,” that order
states: “Rest Fine of $300.00 pursuant to 1202.4 PC payable to Rest Fund to be collected
by DOC.” It is this order that defendant challenges.
DISCUSSION
“A restitution fine imposed at the time probation is granted survives the revocation
of probation. Because of this, an additional restitution fine imposed at the time probation
is revoked is unauthorized and must be stricken from the judgment. [Citations.]”
(People v. Urke (2011) 197 Cal. App. 4th 766, 779.)
Accordingly, defendant argues that “this Court should unequivocally hold that
only the May 30, 2014, restitution fine is authorized.” We understand that argument to
concede the correctness of the May 30 order and to request the court to strike or
otherwise modify the reference to the restitution fine in the June 26 order.
The People concede that the trial court can make only one order for a restitution
fine under section 1202.4, and contend that the reference to the fine in the June 26 order
is simply a repetition of the May 30 order. The People urge this court to refrain from
striking the fine from the minutes of either hearing.
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“A notice of appeal filed before the judgment is rendered or the order is made is
premature, but the reviewing court may treat the notice as filed immediately after the
rendition of judgment or the making of the order.” (Cal. Rules of Court, rule 8.308(c).)
This court hereby exercises its discretion to treat the notice of appeal as being from the
June 26, 2014, parole revocation hearing, specifically as to the parole revocation fine
imposed under section 1202.4. We also order the minute order of June 26, 2014,
modified to make clear only a single $300 fine is imposed under section 1202.4. We do
this in the interest of judicial efficiency.
DISPOSITION
The minute order dated June 26, 2014, is modified to add: “This order is a
restatement of the order for PC 1202.4 restitution fine made on 05/30/2014 and is not an
order for an additional restitution fine.” As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CUNNISON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
 Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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