People v. Chambers

Opinion

NICHOLSON, J. We hold that a restitution fine imposed at the time probation is granted survives the revocation of probation. In this case, the [821]trial court imposed a $200 restitution fine when it granted the defendant probation, but it also imposed a $500 restitution fine later when the defendant’s probation was revoked. Since the first restitution fine survived the revocation of probation, the second restitution fine was unauthorized. Accordingly, we modify the judgment by striking the second restitution fine and affirm the judgment as modified.

Procedure

In 1993, the defendant pleaded no contest to first degree burglary and was placed on probation. At the time probation was granted and as a condition of probation, the trial court ordered the defendant to pay a fine of $200 to the Restitution Fund. (See Pen. Code, § 1202.4, subd. (b).)

In 1997, the trial court revoked the defendant’s probation and sentenced the defendant to nine years in state prison—four years for the first degree burglary (Pen. Code, § 461) and five years for a prior serious felony (Pen. Code, § 667, subd. (a)). The trial court also imposed a fine payable to the Restitution Fund of $500.

Discussion

The sole issue raised by the defendant on appeal is whether the trial court was authorized to impose the $500 restitution fine when it revoked the defendant’s probation in 1997. We conclude it was not authorized. (References to a “restitution fine” are to a fine payable to the Restitution Fund, not to the victim.)

In 1993, when the defendant was granted probation, several provisions of the Government Code and Penal Code governed the restitution fine. Former Government Code section 13967 provided: “[I]f the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200), subject to the defendant’s ability to pay, and not more than ten thousand dollars ($10,000).” (Stats. 1992, ch. 682, § 4, p. 2922.) This provision required imposition of a restitution fine regardless of whether the defendant was placed on probation or sentenced to state prison. (See former Pen. Code, § 1202.4 [requiring imposition of restitution fine when probation granted and allowing stay of fine]; see also People v. Broussard (1993) 5 Cal.4th 1067, 1073 [22 Cal.Rptr.2d 278, 856 P.2d 1134].)