People v. Bernard CA6

Filed 5/18/16 P. v. Bernard CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041733, H042169 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1479278)

v.

MARK BERNARD,

Defendant and Appellant.

Defendant Mark Bernard was placed on probation with imposition of sentence suspended after he pleaded nolo contendere to several joined cases, one of which included charges of bringing a controlled substance or paraphernalia into a prison or jail (Pen. Code, § 4573)1 and a misdemeanor for resisting, delaying, or obstructing a police officer (§ 148, subd. (a)(1)). Later, defendant was arrested on new criminal charges and his probation was subsequently revoked. On appeal, he argues that the trial court erred when it imposed an “additional restitution fine in the sum of [$]330” when he was sentenced to prison. Defendant argues that this additional restitution fine is duplicative, because the original restitution fine imposed when he was first placed on probation with imposition of sentence suspended survived the revocation of probation. For the reasons set forth below, we agree and find the court erred when it imposed a second restitution fine. We modify the judgment and affirm.

1 Unspecified statutory references are to the Penal Code.

BACKGROUND Defendant pleaded nolo contendere to charges in several cases that were joined together. In one of the joined cases, case No. C1479278, defendant pleaded nolo contendere to bringing a controlled substance or paraphernalia into a prison or jail (§ 4573) and a misdemeanor for resisting, delaying, or obstructing a police officer (§ 148, subd. (a)(1)). The trial court sentenced defendant to six months in county jail, suspended imposition of the sentence, and placed him on three years’ probation. The court also imposed a restitution fine of $300 under section 1202.4, subdivision (b), a $30 administrative fee, and imposed and suspended an additional probation revocation restitution fine of $300 under section 1202.44. On August 2, 2014, defendant was arrested on misdemeanor drug charges in an unrelated case. Defendant admitted he violated his probation due to this new arrest, and his probation was revoked. During the sentencing hearing on November 6, 2014, the trial court stated that it was imposing an “additional restitution fine in the sum of [$]330.” The abstract of judgment reflects that he was ordered to pay a $330 restitution fine under section 1202.4, subdivision (b). It does not reflect that any restitution fine under section 1202.44 is now due, probation having been revoked. Defendant was sentenced to the lower term of two years and was given 377 days of credit, composed of 189 days of actual custody credit and 188 days of conduct credit. Defendant appealed (case No. H041733). On December 15, 2014, defendant filed a petition for resentencing under Proposition 47 (§ 1170.18, subds. (a)-(f)), requesting that his conviction under section 4573 be reduced from a felony to a misdemeanor. The trial court denied the petition, noting that section 4573 was not an offense that was affected by Proposition 47.2 2 On November 4, 2014, voters approved Proposition 47, which made certain drug and theft offenses misdemeanors instead of felonies. (Prop. 47, as approved by voters, (continued) 2