Filed 6/12/13 P. v. McLain 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----



THE PEOPLE,                                                                             C069277

                   Plaintiff and Respondent,                                  (Super. Ct. Nos.
                                                                          07NCR04820, 07SCR03940)
         v.

BRYAN PAUL MCLAIN,

                   Defendant and Appellant.




         Following his guilty pleas in these two cases, defendant Bryan Paul McLain was
granted five years of probation. At that time, the trial court imposed in each case a $200
restitution fund fine (Pen. Code, § 1202.4, subd. (b)),1 and a stayed $200 probation
revocation fine (§ 1202.44). Later, upon probation being revoked, the trial court imposed
an $800 restitution fine in case No. 07NCR04820. Defendant appeals the imposition of
this second restitution fine as an unauthorized sentence. We agree with defendant and
shall amend the judgment.


1 Undesignated statutory references are to the Penal Code.


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                                    BACKGROUND

       The substantive facts underlying defendant’s convictions are not relevant to the
issue raised on appeal and therefore we do not recount them.

       In 2007, defendant pleaded guilty in case No. 07NCR04820 to inflicting corporal
injury against a spouse or cohabitant. Defendant absconded before he could be
sentenced. Defendant was charged in case No. 07SCR03940 with willful failure to
appear for his sentencing in case No. 07NCR04820, and he pleaded guilty. Later, in a
single sentencing proceeding, defendant was granted five years of formal probation and
in each case, the court ordered him to pay a $200 restitution fine pursuant to section
1202.4, subdivision (b) and a $200 stayed probation revocation fine pursuant to section
1202.44.

       After defendant violated his probation three times, it was revoked. The trial court
sentenced defendant to state prison for the upper term of four years in case
No. 07NCR04820, and in case No. 07SCR03940, to an additional and consecutive term
of eight months. As relevant to this appeal, the trial court also imposed at sentencing a
restitution fine of $800 in case No. 07NCR04820 (§ 1202.4, subd. (b)), and a
corresponding $800 stayed parole revocation fine (§ 1202.45). In case No. 07SCR03940,
the court imposed restitution and parole revocation fines of $200.

                                      DISCUSSION

       Relying on People v. Chambers (1998) 65 Cal.App.4th 819, 820 (Chambers),
defendant contends the trial court erred in imposing a second restitution fund fine in the
amount of $800 in case No. 07NCR04820. The People agree, as do we. Because the
$200 restitution fine the trial court initially imposed under section 1202.4 survived
revocation of defendant’s probation, the second $800 restitution fine imposed in case
No. 07NCR04820 was unauthorized and must be stricken. (Chambers, supra,
65 Cal.App.4th at p. 820.) “[T]his court has the inherent power to correct the judgment


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to reflect what the law requires. (§ 1260; People v. Smith (2001) 24 Cal.4th 849, 854; In
re Sandel (1966) 64 Cal.2d 412, 417-418.)” (People v. Guiffre (2008) 167 Cal.App.4th
430, 435.)

          Here, the abstract of judgment should reflect the imposition in case
No. 07NCR04820 of a $200 restitution fund fine (§ 1202.4, subd. (b)) and the mandatory
parole revocation fine (§ 1202.45) in the same amount, stayed pending revocation of
parole.

          Probation having been revoked, the abstract should also reflect that the $200
probation revocation fine imposed in each case when probation was initially granted
under section 1202.44 is now due.

                                         DISPOSITION

          The trial court is ordered to amend the minutes of sentencing and abstract of
judgment to reflect the imposition in case No. 07NCR04820 of a $200 restitution fund
fine under section 1202.4, subdivision (b) and a $200 restitution fine under section
1202.45, stayed pending revocation of parole. It shall also amend the minutes of
sentencing and abstract of judgment to reflect that the $200 probation revocation fines
under section 1202.44 previously imposed in case Nos. 07NCR04820 and 07SCR03940
are now due. The trial court is directed to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation. So modified,
the judgment is affirmed.

                                                                BUTZ                   , J.

We concur:

            BLEASE                    , Acting P. J.


            NICHOLSON                 , J.

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