Filed 4/11/14 P. v. Silva CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                 A138747
v.
RYAN PORTER SILVA,                                               (Mendocino County
                                                                 Super. Ct. No. SCUK-CRCR-1117912-02)
         Defendant and Appellant.


         Defendant Ryan Porter Silva was placed on probation and ordered to pay a
restitution fine of $400 and a probation-revocation fine of $400. When Silva’s probation
was later revoked, those fines were increased to $840, and the trial court also imposed a
parole-revocation fine in the same amount. In this timely appeal, Silva argues that the
probation-revocation fine should be stricken, because the trial court did not specifically
mention the fine when it revoked Silva’s probation and sentenced him to prison.
Although we disagree with this argument, we conclude that the three fines should be
reduced to $400 each.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         Silva was charged by information in July 2011 with one felony count of arson
(Pen. Code § 451, subd. (d))1 after someone reported that he threw a butane canister into
a parked car, setting it on fire. He pleaded guilty under an agreement that he not be

1
    All future statutory references are to the Penal Code.


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immediately sentenced to prison, and the matter was referred to the probation department
for a report and recommended disposition.2 The probation officer recommended that
Silva be ordered to pay a restitution fine of $400 under section 1202.4, subdivision (b), as
well as a probation-revocation fine of $400 under section 1202.44, to be paid only if
probation subsequently was revoked. At the sentencing hearing, the trial court adopted
the probation officer’s report, suspended imposition of sentence, placed Silva on three
years’ probation, and imposed the two fines in the amount proposed by the probation
department ($400 each).
         The probation department later filed petitions alleging that Silva failed to comply
with the terms of his probation and left the state without the department’s approval. Silva
admitted the violations, and the trial court referred the matter to the probation department
for a supplemental report. A different probation officer from the one who prepared the
original probation report prepared a first supplemental report. The probation department
recommended that Silva’s probation be revoked and that he be sentenced to the
aggravated term of three years. As for the fines to be imposed, the department
recommended that Silva be ordered to pay a restitution fine of $8403 under
section 1202.44 as well as a parole-revocation fine of $840 under section 1202.45.
         At the sentencing hearing on May 10, 2013, Silva’s attorney argued that Silva
should receive another chance on probation, but he did not argue that the recommended
fines were inappropriate. The trial court permanently revoked Silva’s probation and
sentenced him to three years in prison. The court followed the recommendation of the
probation department and imposed a restitution fine of $840 under section 1202.4,
subdivision (b). It also imposed the recommended parole-revocation fine of $840 under
section 1202.45, to be paid only if parole subsequently was revoked. Although the trial
court did not mention the probation-revocation fine previously ordered under

2
    Silva also entered pleas in two other cases that are not the subject of this appeal.
3
  The report actually stated that the recommended fine was $8,400, but it is clear from the
record that this was a typographical error and that the recommended amount actually was
$840.


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section 1202.44, the court’s minute order stated that Silva was to pay $840 under that
statute. Thus, Silva’s abstract of judgment stated that he was to pay three $840 fines:
one under section 1202.4, subdivision (b); one under section 1202.44; and one under
section 1202.45 if parole was later revoked.
                                               II.
                                         DISCUSSION
       We first reject Silva’s argument that the probation-revocation fine imposed under
section 1202.44 was unauthorized because the trial court did not specifically mention it at
the sentencing hearing on May 10, 2013. Section 1202.44 provides that the restitution
fine imposed under the statute “shall become effective upon the revocation of
probation . . . and shall not be waived or reduced by the court, absent compelling and
extraordinary reasons stated on record.” Because a fine imposed under section 1202.44
when probation is granted “becomes effective” when probation is revoked, it is
unnecessary to specifically mention it at the time that a defendant is sentenced to prison.
(People v. Cropsey (2010) 184 Cal.App.4th 961, 965-966; People v. Guiffre (2008)
167 Cal.App.4th 430, 433-435; see also People v. Rodriguez (2012) 207 Cal.App.4th
1540, 1543 [imposition of previously stayed § 1202.44 fine mandatory upon revocation
of probation with state prison sentence].) Although it would have been preferable for the
trial court to state on the record that the abstract of judgment should reflect the fine
previously imposed (Cropsey, at p. 966), it was not necessary to do so.
       Silva contends that the reference in section 1202.44 to the trial court’s discretion
to waive or reduce the probation-revocation fine where there are “compelling and
extraordinary reasons” means that the fine is discretionary, and the fine is therefore
unauthorized because the court failed to exercise that discretion when it sentenced him to
prison. It is true that the trial court has discretion to waive or reduce a probation-
revocation fine when the fine is first imposed at the time probation is granted. (People v.
Woods (2010) 191 Cal.App.4th 269, 273-274.) Again, though, once the fine is imposed,
it “becomes effective” upon the revocation of probation. (§ 1202.44.) To the extent that
the trial court retains discretion to “waive[] or reduce[]” the fine at the time probation is


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revoked (ibid.), Silva waived any objection to “the trial court’s failure to properly make
or articulate its discretionary sentencing choices.” (People v. Scott (1994) 9 Cal.4th 331,
353.)
        As for the amount of the fines, Silva argues, the Attorney General concedes, and
we agree that all three fines imposed at sentencing should be reduced to $400. The
restitution fine under section 1202.4, subdivision (b) may be imposed only once at the
time of conviction, which was when probation was initially granted, and it may not later
be increased. (People v. Perez (2011) 195 Cal.App.4th 801, 805.) As for the probation-
revocation fine under section 1202.44, the statute provides that it must be in the same
amount as the fine imposed under section 1202.4, subdivision (b), and it likewise cannot
later be increased. (Perez at p. 805.) Finally, section 1202.45, subdivision (a) provides
that a parole-revocation fine must be in the same amount as the fine imposed under
section 1202.4, which, again, was $400 in this case. Thus, the abstract of judgment
should have reflected that all three fines be $400.
        Because the trial court exceeded its statutory authority in increasing the fines, the
issue was not waived by Silva’s failure to object. (People v. Scott, supra, 9 Cal.4th at
p. 354; People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
                                             III.
                                         DISPOSITION
        The portions of the judgment imposing fines in the amount of $840 under
sections 1202.4, subdivision (b), 1202.44, and 1202.45 are each reduced to $400. The
trial court is directed to prepare an amended abstract of judgment and deliver it to the
Department of Corrections and Rehabilitation. In all other respects the judgment is
affirmed.




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                                _________________________
                                Humes, J.


We concur:


_________________________
Ruvolo, P. J.


_________________________
Rivera, J.




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