People v. Pelaiz CA3

Filed 4/1/15 P. v. Pelaiz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C075880

Plaintiff and Respondent, (Super. Ct. No. NCR85165)

v.

NICOLE MARIE PELAIZ,

Defendant and Appellant.

Defendant Nicole Marie Pelaiz pleaded guilty to vandalism resulting in damage exceeding $400 (Pen. Code, § 594, subd. (a))1 in exchange for a stipulated prison sentence of three years, suspended, and three years of formal probation.2 The trial court implemented the terms of the plea agreement and also ordered defendant to pay a restitution fine of $400 (§ 1202.4, subd. (b)) and a probation revocation restitution fine of $400 (§1202.44), stayed pending successful completion of probation.

1 Undesignated statutory references are to the Penal Code. 2 We dispense with a recitation of the facts underlying defendant’s crime as they are unnecessary to resolve this appeal.

1

Following her first violation of probation, the trial court revoked and reinstated defendant’s probation. In reinstating probation, the trial court imposed an additional $400 probation revocation restitution fine, again stayed pending successful completion of probation. Following her second violation of probation, the trial court revoked defendant’s probation and imposed defendant’s suspended sentence. The trial court awarded defendant 183 days of presentence custody credit (92 actual days and 91 days of conduct credit).3 The trial court also ordered defendant to pay the previously stayed $800 in probation revocation restitution fines, and ordered and stayed a $400 parole revocation restitution fine. (§ 1202.45.) Defendant now appeals, contending the trial court imposed an unauthorized sentence when it (1) ordered her to pay an additional $400 probation revocation restitution fine and (2) awarded insufficient presentence conduct credits. The People agree and so do we. Therefore, we modify the judgment to strike the additional probation revocation restitution fine and to award defendant an additional one day of presentence conduct credit. DISCUSSION I Probation Revocation Fine Defendant contends, and the People agree, the trial court ordered defendant to pay an additional and unauthorized probation revocation fine when it executed her suspended