People v. Woods CA2/4 ( 2014 )

Filed 9/18/14 P. v. Woods CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B252824
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA408101)
v.
MICHAEL ONEAL WOODS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael Garcia, Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
INTRODUCTION
Michael Oneal Woods appeals from the imposition of a probation revocation
fine. He contends the fine was unauthorized, as the trial court failed to orally
impose the fine following the probation revocation hearing. Finding no reversible
error, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 17, 2013, appellant entered a plea of nolo contendere to making
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criminal threats, in violation of Penal Code section 422, subdivision (a). He also
admitted a gang allegation. In exchange for the plea, the trial court imposed and
suspended a seven-year prison term, and placed appellant on three years of formal
probation. The court imposed a $280 restitution fine, and suspended a $280
probation revocation fine. The court noted that appellant “would not have to pay
that fine unless you violate your probation.”
On August 20, 2013, the People filed a motion requesting revocation of
appellant’s probation. After a hearing, the court found appellant in violation and
revoked his probation. The court imposed the previously suspended sentence of
seven years in state prison. The court made no mention of any fines, and provided
no reason for waiving or reducing any previously imposed fines. However, the
minute order for the hearing stated: “Defendant to pay probation revocation fine,
previously stayed, pursuant to Penal Code section 1202.44 in the amount of
$280.00.” Similarly, the abstract of judgment reflected a $280 probation
revocation fine.
Appellant timely filed a notice of appeal.
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All further statutory citations are to the Penal Code.
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DISCUSSION
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.” Section 1202.44 provides: “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. This additional probation
revocation restitution fine shall become effective upon the revocation of probation
or of a conditional sentence, and shall not be waived or reduced by the court,
absent compelling and extraordinary reasons stated on record.” “Thus, a convicted
defendant who is granted probation will ordinarily be subject to two restitution
fines -- a state Restitution Fund fine under section 1202.4(b) and a probation
revocation restitution fine under section 1202.44, which is stayed unless probation
is revoked.” (People v. Guiffre (2008) 167 Cal. App. 4th 430, 434.)
Following the revocation of probation, a trial court may not impose new
restitution fines for the same conviction. (People v. Cropsey (2010)
184 Cal. App. 4th 961, 966 (Cropsey).) However, where a probation revocation
restitution fine has been previously imposed, it “‘survive[s] the revocation of
probation.’” (Id. at p. 965, quoting People v. Chambers (1998) 65 Cal. App. 4th
819, 822.) Accordingly, “there is no need to reimpose an extant restitution fine.”
(Cropsey, supra, at p. 966.) Rather, the court should lift the stay on the section
1202.44 fine. (People v. Guiffre, supra, 167 Cal.App.4th at p. 435.)
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Section 1202.44 provides that the probation revocation fine “shall not be
waived or reduced by the court, absent compelling and extraordinary reasons stated
on record.” Relying on People v. Tillman (2000) 22 Cal. 4th 300 (Tillman),
appellant argues the failure of the court to orally reimpose the probation revocation
fine renders the subsequent “imposition” of the fine in the minute order and
abstract of judgment unauthorized. We disagree. Tillman is distinguishable, as
there, the trial court did not impose a restitution fine or parole revocation fine at
the defendant’s initial sentencing. Our Supreme Court held that those restitution
fines could not be imposed subsequently. (Id. at p. 302.) In contrast, here, the
$280 probation revocation restitution fine was imposed at appellant’s sentencing
following his plea, and he was advised that he would have to pay it if he violated
probation. The fine became effective immediately upon the revocation of
appellant’s probation, without any further action required by the trial court.
(§ 1202.44; Cropsey, supra, 184 Cal.App.4th at pp. 965-966.) Absent a judicial
finding of compelling and extraordinary reasons, stated on the record, the
probation revocation fine could not be waived or reduced. (§ 1202.44.) As the
trial court made no such finding of compelling and extraordinary reasons to waive
or reduce the probation revocation fine, the minute order and abstract of judgment
correctly reflected that appellant was required to pay the extant probation
revocation fine.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
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