P. v. Nelson

Filed 11/30/05 P. v. Nelson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

THE PEOPLE, Plaintiff and Respondent, v. DONALD RAY NELSON, Defendant and Appellant.

C048496 (Super. Ct. No. CM014706)

In February 2001, defendant Donald Ray Nelson was granted probation after he pleaded no contest to corporal injury on a co-habitant. (Pen. Code, § 273.5, subd. (a); further unspecified section references are to the Penal Code.) As a condition of probation, he was ordered to pay a $200 restitution fine. (§ 1202.4.)

After defendant violated probation three times, the court terminated his probation and sentenced him to the upper term of four years in prison and ordered him to pay a $200 restitution fine (§ 1202.4).

Defendant appeals, contending the court erred in (1) imposing the upper term in violation of his federal constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; and (2) imposing a second restitution fine. We affirm the judgment.

DISCUSSION

I

Blakely

Defendant contends the trial court erred in imposing the upper term because it relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thereby violating the principles enunciated in Blakely v. Washington, supra, 542 U.S. 296 [159 L.Ed.2d 403]. The California Supreme Court rejected the identical claim in People v. Black (2005) 35 Cal.4th 1238, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II

Restitution Fine

Citing People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers), defendant contends the trial court erred in imposing a second $200 restitution fine when it sentenced him to prison following revocation of probation. Although defendant did not object to imposition of the restitution fine at sentencing, the question whether the court exceeded its statutory authority is properly before us in this appeal. (Id. at p. 823.)

In Chambers, the trial court imposed a $200 restitution fine under section 1202.4, subdivision (b), when it granted probation, and imposed a $500 restitution fine under the same section when it revoked probation and sentenced Chambers to prison. (Chambers, supra, 65 Cal.App.4th at p. 821.) On appeal, we held that “a restitution fine imposed at the time probation is granted survives the revocation of probation.” (Id. at p. 820.) Because the second restitution fine was unauthorized, we modified the judgment by striking the second restitution fine. (Id. at p. 821.)

In this case, however, there is nothing to indicate the court imposed a “second restitution fine” as defendant claims. At sentencing, the court stated, “The court will order that he pay a restitution fine, per 1202.4 (b), in the amount of $200 . . . .” We interpret the court’s statement to mean that defendant is ordered to pay the $200 restitution fine that was initially imposed when probation was granted and not an additional $200 restitution fine.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

HULL , J.

CANTIL-SAKAUYE , J.

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