People v. Tate CA4/1

California Court of Appeal · D063475 · 2013-12-13 · Unpublished

Proceeding: appeal from judgments
Trial court: Superior Court of San Diego County · No. SCD230772, SCN306550
Trial judge: Charles W. Ervin
Outcome: modified — Affirmed as modified.
Area: criminal
Panel: McINTYRE (author), Alex C. McDonald, Gilbert Nares

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:47Z · confidence high

The trial court increased restitution fines upon probation revocation and orally imposed unauthorized parole revocation fines. The Court of Appeal modified the judgment to reduce the restitution fines to their original amounts and strike the parole revocation fines.

Ruling reviewed	Standard	The court	The model
Increase of restitution fines from $200/$240 to $400 upon probation revocation “We agree that the trial court erred when it increased the amount of the previously imposed restitution fines upon the revocation of Tate's probation.”	unclear	error	agree with court agree with court
Imposition of $400 parole revocation fine under Penal Code section 1202.45(b) “Tate's crimes were subject to sentencing under the Realignment Act and he was sentenced to county jail under section 1170(h). Accordingly, he will not be subject to a state parole period after his sentence is completed.”	unclear	error	agree with court agree with court

Authorities

relied: People v. Johnson (2003) 114 Cal.App.4th 284 — A trial court may not increase the amount of a restitution fine previously imposed upon the revocation of probation.
relied: People v. Downey (2000) 82 Cal.App.4th 899 — Accords with the principle that restitution fines cannot be increased upon probation revocation.
relied: People v. Chambers (1998) 65 Cal.App.4th 819 — Supports the limitation on increasing restitution fines after initial sentencing.
relied: People v. Cruz (2012) 207 Cal.App.4th 664 — Defendants sentenced under Penal Code section 1170(h) (Realignment Act) are not subject to state parole and therefore not subject to parole revocation fines.
relied: People v. Morelos (2008) 168 Cal.App.4th 758 — Where there is a conflict between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.

The appellate opinion: sound — The court correctly applied established law regarding the prohibition on increasing restitution fines upon probation revocation and correctly applied the Realignment Act principles from People v. Cruz to determine that the defendant was ineligible for parole revocation fines. The reasoning is direct and supported by the cited authorities.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After revoking Tate's probation in two cases and executing previously suspended terms, the San Diego Superior Court imposed $400 restitution fines under Penal Code section 1202.4(b) in each case (replacing the $200 and $240 fines imposed when probation was granted) and orally imposed a $400 section 1202.45 fine stayed unless parole was revoked. The Court of Appeal, with the Attorney General conceding error on both points, modified the judgments to restore the original $200 and $240 restitution fines and to strike the parole revocation fine because a defendant sentenced under section 1170(h) is never subject to parole, and affirmed as modified.

Ruling reviewed	Standard	The court	The model
Imposition of $400 restitution fines under section 1202.4(b) upon revocation of probation, increasing the $200 and $240 fines imposed when probation was originally granted “We agree that the trial court erred when it increased the amount of the previously imposed restitution fines upon the revocation of Tate's probation.”	unclear	error	agree with court The opinion does not articulate a standard of review, but the issue is one of law (an unauthorized sentence). Under Chambers, Johnson and Downey, a restitution fine imposed as a condition of probation survives revocation, and a second or increased fine imposed at the time probation is revoked is unauthorized. The court correctly applied these authorities and the Attorney General conceded the point.
Oral imposition of a $400 section 1202.45 parole revocation restitution fine, stayed unless parole is revoked “Accordingly, he will not be subject to a state parole period after his sentence is completed. (Cruz, supra, 207 Cal.App.4th at pp. 671-672.) Thus, he is not subject to a parole revocation fine.”	unclear	error	agree with court The court treated the fine as unauthorized because Tate was sentenced to county jail under section 1170(h) and therefore will never be on parole, relying on Cruz. That reasoning is sound as far as it goes, and the court properly held the oral pronouncement controlled over the silent abstracts (Morelos). However, the opinion labels the fine as one under subdivision (b) of section 1202.45 (the mandatory supervision revocation fine) yet analyzes it solely as a parole revocation fine, and never addresses whether any portion of the county jail term was suspended for mandatory supervision; it also describes the sentences as 'prison' terms and directs the abstracts to CDCR, which is inconsistent with a section 1170(h) county jail commitment. Because nothing in the opinion indicates mandatory supervision was imposed, striking the fine appears correct, but the court did not reach Tate's ex post facto argument and the characterization is somewhat muddled.

Authorities

relied: People v. Johnson (2003) 114 Cal.App.4th 284 — A restitution fine imposed when probation is granted survives revocation of probation; the court may not impose a different or increased restitution fine upon revocation.
relied: People v. Downey (2000) 82 Cal.App.4th 899 — A second restitution fine imposed upon revocation of probation is unauthorized because the original fine remains in force.
relied: People v. Chambers (1998) 65 Cal.App.4th 819 — A restitution fine imposed as a condition of probation survives revocation, and a second restitution fine imposed at sentencing after revocation is unauthorized and must be stricken.
relied: People v. Cruz (2012) 207 Cal.App.4th 664 — A defendant sentenced to county jail under section 1170(h) is not subject to a period of state parole and therefore is not subject to a section 1202.45 parole revocation restitution fine.
relied: People v. Morelos (2008) 168 Cal.App.4th 758 — When the oral pronouncement of judgment conflicts with the abstract of judgment, the oral pronouncement controls.

The appellate opinion: sound with gaps — The opinion reaches the correct, conceded results on both fines with apposite authority (Chambers/Johnson/Downey on the restitution fines; Cruz on the inapplicability of parole revocation fines to section 1170(h) defendants). It leaves gaps, however: it refers to the fine as a subdivision (b) fine yet analyzes it as a parole fine without discussing mandatory supervision, declines to reach Tate's ex post facto argument, and inconsistently describes the sentences as prison terms and directs abstracts to CDCR while holding Tate was committed to county jail under section 1170(h).

How this analysis was made · dispute it

record incomplete

Opinion

Filed 12/13/13 P. v. Tate CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063475

Plaintiff and Respondent, v. (Super. Ct. Nos. SCD230772, SCN306550)

JAMES DAVID TATE,

Defendant and Appellant.

APPEAL from judgments of the Superior Court of San Diego County, Charles W. Ervin, Judge. Affirmed as modified.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent. James David Tate appeals from fines imposed after the trial court revoked his probation in two cases. He contends the trial court erred by increasing his restitution fines and by imposing a parole revocation fine. We agree.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged Tate with a number of charges arising from crimes he allegedly committed on November 16, 2010 (SCD230772, the first case). Tate pleaded guilty to one count of receiving stolen property and admitted that he had one prior felony vehicle theft conviction. The trial court imposed a four-year prison term, but suspended the execution of sentence and placed Tate on probation for three years. It also imposed a $200 restitution fine under subdivision (b) of Penal Code section 1202.4 (section 1202.4(b)). (Undesignated statutory references are to the Penal Code.)

While on probation, the People charged Tate with a number of charges arising from crimes he allegedly committed in January and February 2012 (SCN306550, the second case). Tate pleaded guilty to receiving a stolen vehicle and admitted that he had a prior felony vehicle theft conviction. The trial court imposed a three-year prison term, but suspended the execution of sentence and placed Tate on probation for three years.

The trial court also imposed a $240 restitution fine under section 1202.4(b).

Thereafter, Tate admitted violating probation and probation was revoked in both cases. On December 14, 2012, the trial court lifted the stays on the four-year prison term in the first case and the three-year prison term in the second case, and ordered the sentence in the second case to run concurrent with the four-year prison term imposed in the first case. As to both cases, the trial court imposed a $400 restitution fine under 2 section 1202.4(b). The trial court also orally imposed a $400 fine under section 1202.45, stating that the fine was "stayed unless" parole was revoked. Tate timely appealed.

DISCUSSION

I. Restitution Fines When Tate was placed on probation in both cases, the respective trial courts imposed $200 and $240 restitution fines. After the trial court revoked Tate's probation, it imposed a $400 restitution fine in both cases. Tate contends, and the Attorney General concedes, that the trial court erred in imposing a greater restitution fine following the revocation of probation and that each must be reduced to the prior amounts of $200 and $240. We agree that the trial court erred when it increased the amount of the previously imposed restitution fines upon the revocation of Tate's probation. (People v. Johnson (2003) 114 Cal.App.4th 284, 306-308; accord People v. Downey (2000) 82 Cal.App.4th 899, 921; see also People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.)

II. Parole Revocation Fines The trial court orally imposed a $400 fine under subdivision (b) of section 1202.45 (section 1202.45(b)) fine in each case, which was ordered "stayed unless [Tate's] parole is revoked." Tate asserts that the oral imposition of these fines should be stricken because section 1202.45(b) was not yet in effect at the time he committed his offenses nor at the time he was sentenced and its application to him violates ex post facto principles. The Attorney General agrees that a parole revocation restitution fine was unauthorized, but for a different reason. The Attorney General asserts that because Tate was sentenced under subdivision (h) of section 1170 (section 1170(h)), he will never be subject to parole 3 or a parole revocation fine. (People v. Cruz (2012) 207 Cal.App.4th 664, 671-672 (Cruz).) We agree with the Attorney General and do not address Tate's argument.

Preliminarily, the trial court orally imposed the section 1202.45(b) parole revocation fine, but the abstracts of judgment do not reflect the court's oral pronouncement. Where, as here, there is a conflict between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Morelos (2008) 168 Cal.App.4th 758, 768.)

Under the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats.

2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1), many felonies are no longer punished by confinement in state prison, but are instead subject to confinement in county jail.

(§ 1170, subd. (h)(1), (2).) Felons sentenced under this provision may have a concluding portion of the county jail term suspended and placed under the mandatory supervision of the county probation department. (§ 1170, subd. (h)(5)(B)(i).)

Tate's crimes were subject to sentencing under the Realignment Act and he was sentenced to county jail under section 1170(h). Accordingly, he will not be subject to a state parole period after his sentence is completed. (Cruz, supra, 207 Cal.App.4th at pp. 671-672.) Thus, he is not subject to a parole revocation fine. (Id. at p. 672, fn. 6.)

The parole revocation fine must be stricken.

4 DISPOSITION

The judgments are modified to strike: (1) the Penal Code section 1202.4, subdivision (b) restitution fines in the amount of $400, and insert the correct fines of $200 (case SCD230772) and $240 (case SCN306550); and (2) the oral imposition of the Penal Code section 1202.45 parole revocation fine. As so modified, the judgments are affirmed. The trial court is directed to prepare amended abstracts of judgment reflecting the modification and forward them to the Department of Corrections and Rehabilitation.

MCINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.

Cites, in this corpus

People v. Cruz No. F062189 · 2012-07-03
People v. Morelos F052418 · 2008-11-24
People v. Johnson D041023 · 2004-01-12
People v. Downey B136294 · 2000-08-02
People v. Chambers No. C027662 · 1998-07-23