People v. Ayon CA6

Filed 8/29/14 P. v. Ayon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039900 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC066607)

v.

LILLIAN AYON,

Defendant and Appellant.

Defendant Lillian Ayon was placed on probation based on her plea of no contest to a charge of welfare fraud. On appeal from an order revoking and reinstating probation for the second time, she contends that the court erroneously imposed a “second restitution fine.” We conclude that although the challenged fine is misdescribed in the record it was intended only as a continuation of the fine originally imposed. We will direct a correction and affirm the judgment as corrected. BACKGROUND A complaint was filed on March 30, 2000, charging defendant and Jose Jesus Ayon with felony welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)) in that they obtained over $400 in food stamps by means of a false statement or fraudulent device. She pled no contest on March 8, 2004. On March 30, the court placed her on probation

for five years on the conditions, among others, that she pay $6,221 restitution to the defrauded agency and pay a restitution fine of $300. On December 18, 2008, the court ordered probation revoked and a bench warrant issued for failure to comply with the terms of probation. The probation department reported, as relevant here, that defendant had failed to make timely payments toward victim restitution and her court-ordered fines and fees, including the “State Restitution Fee,” on which she owed $200. Defendant was arrested on February 24, 2010, and upon her admission of the violation, was again placed on five years probation as a “new grant.” On June 14, 2011, probation was again revoked and a bench warrant ordered. Defendant was arrested on April 4, 2013. On May 15, she admitted that she had violated probation and was sentenced to 16 months in county jail. She filed this timely appeal. DISCUSSION Defendant contends that the court erred by imposing a new $200 fine on May 15, 2013, after probation was revoked for the second time. Respondent does not deny that it would have been error to impose a new fine, but contends that the $200 fine was the unpaid portion of the $300 fine originally imposed. At the hearing on May 15, 2013, the court pronounced judgment in pertinent part as follows: “In this matter, court will . . . select the mitigated term of 16 months. [¶] . . . [¶] And court will impose a restitution fund fine previously suspended, $200.” The clerk’s minutes include an entry reading as follows, with the underlined material inserted, and the struck-through material apparently obliterated, by hand: “Add’l RF $200 Susp’d PC1202.44/45.” The abstract of judgment contains the entry, “Restitution fine(s) . . . . $200 per PC 1202.45 suspended unless parole is revoked.” There is no indication that the court intended to impose a fine under either Penal Code section 1202.44 (section 1202.44) or 1202.45 (section 1202.45). Nor does it appear that it could have done so. Section 1202.45 is triggered only when the defendant’s