People v. Silva CA1/4

Filed 4/11/14 P. v. Silva CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A138747 v. RYAN PORTER SILVA, (Mendocino County Super. Ct. No. SCUK-CRCR-1117912-02) Defendant and Appellant.

Defendant Ryan Porter Silva was placed on probation and ordered to pay a restitution fine of $400 and a probation-revocation fine of $400. When Silva’s probation was later revoked, those fines were increased to $840, and the trial court also imposed a parole-revocation fine in the same amount. In this timely appeal, Silva argues that the probation-revocation fine should be stricken, because the trial court did not specifically mention the fine when it revoked Silva’s probation and sentenced him to prison. Although we disagree with this argument, we conclude that the three fines should be reduced to $400 each. I. FACTUAL AND PROCEDURAL BACKGROUND Silva was charged by information in July 2011 with one felony count of arson (Pen. Code § 451, subd. (d))1 after someone reported that he threw a butane canister into a parked car, setting it on fire. He pleaded guilty under an agreement that he not be

1 All future statutory references are to the Penal Code.

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immediately sentenced to prison, and the matter was referred to the probation department for a report and recommended disposition.2 The probation officer recommended that Silva be ordered to pay a restitution fine of $400 under section 1202.4, subdivision (b), as well as a probation-revocation fine of $400 under section 1202.44, to be paid only if probation subsequently was revoked. At the sentencing hearing, the trial court adopted the probation officer’s report, suspended imposition of sentence, placed Silva on three years’ probation, and imposed the two fines in the amount proposed by the probation department ($400 each). The probation department later filed petitions alleging that Silva failed to comply with the terms of his probation and left the state without the department’s approval. Silva admitted the violations, and the trial court referred the matter to the probation department for a supplemental report. A different probation officer from the one who prepared the original probation report prepared a first supplemental report. The probation department recommended that Silva’s probation be revoked and that he be sentenced to the aggravated term of three years. As for the fines to be imposed, the department recommended that Silva be ordered to pay a restitution fine of $8403 under section 1202.44 as well as a parole-revocation fine of $840 under section 1202.45. At the sentencing hearing on May 10, 2013, Silva’s attorney argued that Silva should receive another chance on probation, but he did not argue that the recommended fines were inappropriate. The trial court permanently revoked Silva’s probation and sentenced him to three years in prison. The court followed the recommendation of the probation department and imposed a restitution fine of $840 under section 1202.4, subdivision (b). It also imposed the recommended parole-revocation fine of $840 under section 1202.45, to be paid only if parole subsequently was revoked. Although the trial court did not mention the probation-revocation fine previously ordered under