People v. Harper CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN320633
- Trial judge
- Richard S. Whitney
- Outcome
- affirmed — Affirmed with directions.
- Area
- criminal
- Panel
- Judith L. Haller (author), McINTYRE, Cynthia Aaron
Analysis
The trial court imposed a second restitution fine upon revoking probation, despite having already imposed a restitution fine as a condition of probation. The Court of Appeal affirmed the judgment but directed the trial court to strike the unauthorized second restitution fine.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a second restitution fine upon revocation of probation“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.” | de novo | error | agree with court The court correctly applied the rule that a restitution fine imposed at the time probation is granted survives revocation, making a second fine unauthorized. The reliance on People v. Urke and People v. Arata is appropriate for this proposition. |
Conflict between oral pronouncement and abstract of judgment regarding the number of restitution fines“the transcript of the sentencing hearing following revocation of probation clearly indicates the court imposed a second restitution fine, and this oral pronouncement prevails over the abstract of judgment.” | de novo | correct | agree with court The court correctly identified that the oral pronouncement at sentencing controls over the abstract of judgment when there is a discrepancy. This is a standard principle in California sentencing law. |
Authorities
- relied: People v. Urke (2011) 197 Cal.App.4th 766 — A restitution fine imposed at the time probation is granted survives revocation; an additional fine imposed at revocation is unauthorized. Oral pronouncement prevails over abstract of judgment.
- relied: People v. Arata (2004) 118 Cal.App.4th 195 — A restitution fine imposed at the time probation is granted survives revocation; an additional fine imposed at revocation is unauthorized.
The appellate opinion: sound — The opinion is sound because it correctly applies established California law regarding the survival of restitution fines upon probation revocation and the precedence of oral sentencing pronouncements over abstracts of judgment. The reasoning is concise and directly addresses the specific error identified by both parties.
How this analysis was made · dispute it
unusual dispositionThe trial court, after revoking Harper's probation for assault with force likely to produce great bodily injury, sentenced him to the upper term of four years and orally imposed a second $280 restitution fine under Penal Code section 1202.4, subdivision (b), duplicating the fine imposed when probation was granted. The Court of Appeal, with the Attorney General's concession, held the second fine unauthorized, affirmed the judgment, and directed the trial court to prepare an order striking the February 6 fine.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a second $280 restitution fine under section 1202.4, subdivision (b) at sentencing following revocation of probation“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.” | de novo | error (law misapplied) | agree with court An unauthorized sentence presents a question of law reviewable at any time; the opinion correctly applies settled authority (Urke, Arata) that the original restitution fine survives revocation and a duplicate fine is unauthorized. The Attorney General conceded the point and the court correctly held the oral pronouncement controls over the abstract of judgment. |
Authorities
- relied: People v. Urke (2011) 197 Cal.App.4th 766 — A restitution fine imposed when probation is granted survives revocation; a second restitution fine imposed at revocation is unauthorized and must be stricken; the oral pronouncement of judgment prevails over the abstract of judgment.
- relied: People v. Arata (2004) 118 Cal.App.4th 195 — A restitution fine imposed as a condition of probation remains in force after revocation; defendant is entitled to credit for payments made and remains liable for the balance.
The appellate opinion: sound — The opinion correctly applies Urke and Arata to strike a duplicate restitution fine, a point conceded by the Attorney General, and properly holds the oral pronouncement controls over the abstract of judgment. It also sensibly addresses credit for any payments on the original fine, leaving no argument unanswered.
Opinion
Filed 10/28/15 P. v. Harper 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, D067517
Plaintiff and Respondent, v. (Super. Ct. No. SCN320633)
AUSTIN BLAINE HARPER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard S.
Whitney, Judge. Affirmed with directions.
Alissa Bjerkhoel, 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, Arlene Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. In August 2013, Austin Blaine Harper pled guilty to assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)1,2 In October, the trial court suspended imposition of sentence and imposed three years of formal probation, including 270 days in custody. The court imposed other conditions of probation, including, as is relevant here, a restitution fine in the amount of $280 pursuant to section 1202.4, subdivision (b). The fine was ordered to be paid at the rate of $25 per month, starting 60 days after release from custody Based on various admitted probation violations, the court summarily revoked, and then reinstated, defendant's probation on two separate occasions between February and July, 2014. Following an evidentiary hearing on January 28, 2015, the court formally revoked Harper's probation because of additional probation violations.
On February 6, the court sentenced defendant to the upper term of four years in prison and imposed various fines, including a $280 restitution fine pursuant to section 1202.4, subdivision (b). Although the court orally imposed this fine during the sentencing hearing and the court minutes reflect this oral pronouncement, the court's abstract of judgment discloses only one restitution fine.
Harper contends and the Attorney General agrees, the court imposed two restitution fines and the second fine was unauthorized. We also agree. "A restitution fine imposed at the time probation is granted survives the revocation of probation. Because of 1 All subsequent statutory references are to the Penal Code.
2 We omit a recitation of the facts as they are not relevant to this appeal. 2 this, an additional restitution fine imposed at the time probation is revoked is unauthorized and must be stricken from the judgment." (People v. Urke (2011) 197 Cal.App.4th 766, 779; see People v. Arata (2004) 118 Cal.App.4th 195, 203.)
We recognize the abstract of judgment reflects only one restitution fine. However, the transcript of the sentencing hearing following revocation of probation clearly indicates the court imposed a second restitution fine, and this oral pronouncement prevails over the abstract of judgment. (People v. Urke, supra, 197 Cal.App.4th at p.
779.) Accordingly, the second restitution fine must be stricken.
To avoid confusion in the future, we note the record is silent as to whether defendant paid the first restitution fine imposed as a condition of probation. If so, he is entitled to credit for all payments he has made. If not, he is responsible for paying the fine during and, if necessary, after his prison sentence. (People v. Arata, supra, 118 Cal.App.4th at p. 203.)
3 DISPOSITION
The judgment is affirmed with directions to the court to prepare an ex parte order reflecting the restitution fine imposed on February 6 is stricken. In all other respect ts the judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
MCINTYRE, J.
AARON, J.
Cites, in this corpus
- People v. Urke No. C063169 · 2011-07-19
- People v. Arata C042769 · 2004-04-29