People v. Greeley CA1/4

Filed 10/28/13 P. v. Greeley CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A138687 v. RICHARD GREELEY, (San Francisco County Super. Ct. No. 216890) Defendant and Appellant.

Defendant Richard Greeley appeals from an order revoking his probation. His court-appointed counsel filed a brief asking this court for an independent review of the record to determine whether there are any arguable issues under People v. Wende (1979) 25 Cal.3d 436. After conducting such a review, we found that the record contains irregularities regarding fines that were imposed when Greeley‟s probation was revoked, and we requested supplemental briefing on these irregularities. After considering the parties‟ briefing, we conclude there are three fine-related errors. First, the abstract of judgment and the minute order include a $280 restitution fine under Penal Code1 section 1202.4, subdivision (b) that the trial court did not impose and could not lawfully have imposed. Second, as a matter of law, the amount of the probation-revocation fine under section 1202.44 is $200, which is the amount referenced in the abstract of judgment and the minute order, not $240 as orally pronounced by the court. Finally, the abstract of judgment and the minute order include a $280 parole-

1 Unless otherwise noted, all further statutory references are to the Penal Code.

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revocation fine under section 1202.45 that the court did not impose and could not have lawfully imposed. Our disposition corrects these three errors but otherwise affirms the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND In November 2011, Greeley pleaded guilty to five felony counts and two misdemeanor counts after he stole various items from two businesses in July and August 2011.2 He also admitted a prior-strike conviction of first degree burglary. (§§ 459, 667, subd. (d).) The trial court dismissed the misdemeanor charges, sentenced Greeley to six years in prison, suspended the execution of the sentence, and placed him on three years of formal probation. The court also imposed a $200 restitution fine under section 1202.4, subdivision (b) as a condition of probation, and it imposed, but stayed, a $200 probation- revocation fine under section 1202.44. Greeley violated the terms and conditions of his probation and, in March 2013, the trial court revoked his probation and executed the six-year prison sentence. In its oral pronouncement, the court ordered Greeley “to pay a $240 probation revocation fine that is now imposed.” The abstract of judgment and the minute order, however, reflect a probation-revocation fine in the amount of $200, not $240. The abstract of judgment and the minute order also contain two fines the court did not orally pronounce: a $280 restitution fine under section 1202.4(b) and a $280 parole- revocation fine under section 1202.45. The abstract of judgment states that the parole- revocation fine is suspended “unless parole is revoked,” and the minute order states the fine is suspended “unless the person‟s parole, mandatory supervision or PRCS [postrelease community supervision] is revoked.”