Filed 10/11/13 P. v. Phillips 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C072874

                   Plaintiff and Respondent,                                     (Super. Ct. No. 08F08442)

         v.

TYLER L. PHILLIPS,

                   Defendant and Appellant.




         Appointed counsel for defendant Tyler L. Phillips has asked this court to review
the record to determine whether there exist any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) We shall modify the judgment to impose a
necessary fine. We direct the abstract be amended accordingly, as well as corrected to
reflect defendant’s remaining financial obligations and credits.
                                                 BACKGROUND
         On an evening in October 2008, law enforcement officers observed defendant
driving a stolen car. Defendant attempted to flee but was tasered and detained without
further incident.



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       Defendant pleaded guilty to unlawful driving or taking of a vehicle. (Veh. Code,
§ 10851, subd. (a).) The trial court suspended imposition of sentence and placed
defendant on formal probation for five years on the condition, among others, that he serve
150 days in jail with credit for 72 days. The court also ordered him to pay $1,000 in
victim restitution (Pen. Code, § 1202.4, subd. (f)), a $200 restitution fine (Pen. Code,
§ 1202.4, subd. (b)), a $200 restitution fine suspended unless probation is revoked (Pen.
Code, § 1202.44), and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)).
A charge of receiving stolen property (Pen. Code, § 496) was dismissed in the interest of
justice.
       In March 2009, December 2010, January 2011, March 2011 and November 2011
the trial court found that defendant had violated his probation and, each time, it reinstated
probation on the condition that defendant serve an additional period of incarceration.
At both his March and November 2011 hearings, defendant entered a “Johnson waiver,”
that is, pursuant to People v. Johnson (2002) 28 Cal.4th 1050, he agreed that he would
not receive more than 365 days of presentence credit if a prison sentence were imposed.
       On August 2, 2012, defendant tested presumptive positive for marijuana and
methamphetamine. Defendant admitted having smoked methamphetamine with another
probationer.
       Following a contested hearing, the trial court found that defendant had violated his
probation in that he failed to notify probation of a change of address, tested positive for
marijuana and methamphetamine, and associated with a known drug user. On January 4,
2013, the court sentenced defendant to the upper term of three years of incarceration.
It awarded defendant 365 days of custody credit (the maximum available to defendant for
his time in custody before his latest arrest in August 2012 due to the Johnson waivers)
and 156 days of custody credit for his latest incarceration (August 2, 2012, to January 4,
2013) as well as 156 days of conduct credit for that same time period. The court did not



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reference defendant’s extant financial obligations (previously imposed as conditions of
probation), nor did it impose the (suspended) probation revocation restitution fine.
                                      DISCUSSION
       Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days elapsed, and we received no communication from defendant.
       Our review discloses the need to modify the judgment to impose the probation
revocation restitution fine. Our review also discloses the need to correct the abstract.
Box 5 should reflect the extant victim restitution and the fines and fees previously
imposed as conditions of probation. (See People v. Chambers (1998) 65 Cal.App.4th
819, 822 [“We hold that a restitution fine imposed at the time probation is granted
survives the revocation of probation”]; People v. Kleinman (2004) 123 Cal.App.4th 1476,
1481 [“Having voluntarily agreed to the terms of probation, a defendant cannot use his
own breach of those terms as a basis for evading the properly imposed restitution
obligation he assumed”].)
       Further, Box 14 should reflect defendant’s “actual local time” as 521 days--365
days served prior to defendant’s August 2, 2012 arrest plus 156 days served after his
arrest. Defendant’s “local conduct credits” should be reflected as 156 days.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is modified to impose the probation revocation restitution fine. As
modified, the judgment is affirmed. The trial court is directed to prepare an amended




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abstract of judgment, corrected to properly reflect defendant’s financial obligations as
well as his credits, and to forward a certified copy to the relevant authorities.



                                                         DUARTE                     , J.



We concur:



           BLEASE                       , Acting P. J.



           MAURO                        , J.




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