Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA078814, Arthur Jean, Jr., Judge.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Following his July 2008 plea of no contest to petty theft with a prior, defendant and appellant Lamont Russell was granted probation. Probation was terminated in June 2010, due to Russell’s failure to report to his probation officer for several months. The trial court sentenced him to the high term of three years in prison. Russell contends: (1) there was insufficient evidence to support the trial court’s finding he willfully deserted his probation; (2) the trial court violated California Rules of Court, rule 4.435 when it based his upper term sentence on events occurring subsequent to the original grant of probation; (3) the trial court failed to consider mitigating factors when imposing sentence; and (4) the court erred by imposing “duplicate and unauthorized” fines and fees. We modify the judgment in regard to the fines and fees imposed. In all other respects, we affirm.
In his opening brief, Russell also contended that the trial court miscalculated his custody credits. He represents in his reply brief that the trial court has now corrected the error, and he withdraws the point as moot.
FACTUAL AND PROCEDURAL BACKGROUND
We glean the facts from the probation report and the transcript of the preliminary hearing.
On the afternoon of June 25, 2008, Long Beach Police Officer Garey Bruyere and his partner were on patrol when they observed Russell running down the street with a case of Budweiser beer. A Budweiser delivery truck was parked nearby at a liquor store. The officers followed Russell. When he stopped and set the beer down, they detained him. He volunteered, “ ‘I just did the stupidest thing.’ ” He stated that he had gone to get his wife a beer, saw the Budweiser truck, and took a case off the truck. Shortly thereafter, the driver of the truck approached the officers, looking for his missing case of beer. He explained he had stacked the cases next to his truck, and one was missing.
The probation report prepared for a July 2008 early disposition conference noted that Russell had completed eight prior state prison commitments, seven involving theft-related crimes and one involving a non-violent escape from prison. Due to his prior felonies, Russell was statutorily ineligible for probation absent a finding his was an unusual case. (Pen. Code, § 1203, subd. (e)(4).) The probation officer opined: “It would seem difficult to find this matter ‘unusual[, ]’ given the fact the defendant has been sentenced to state prison on seven separate felony convictions since 1987.” His most recent state prison sentence had been for 40 months, in 1998. He had also suffered multiple prior parole violations. The probation officer observed: “It appears while the defendant is on probation or parole, he continues to involve himself in theft-related crimes in the community and is always ultimately sent back to state prison for his behavior.” The probation officer also expressed concern that Russell had “sustained several recent arrests involving spousal assault behavior.” The report recommended Russell be sentenced to the maximum time in jail.
All further undesignated statutory references are to the Penal Code.
At the preliminary hearing, the trial court concluded Russell’s case was unusual because his last prior felony conviction had occurred approximately 10 years previously. Russell pleaded no contest to petty theft with a prior (§ 666) and admitted suffering eight prior felony convictions. The court placed Russell on formal probation for three years. Among other things, as conditions of probation Russell was required to serve 30 days in jail, with credit for 30 days served; complete 60 days of Department of Transportation (Caltrans) service; obey all “rules and regulations of the probation officer”; and “keep the probation officer advised of” his work and home telephone numbers at all times. The trial court admonished, “I’m hopeful, Sir, that you will not do anything like this again because, of course, if you do, you’re not only looking to go back to prison, it’s liable to be longer than 16 months.”
The trial court imposed a $200 restitution fine; a $200 stayed probation revocation restitution fine; a $20 court security fee; a $10 crime prevention fine; attorney fees in an amount to be determined by a financial evaluator; and the cost of probation services as determined by the probation officer.
2. June 2009 probation revocation hearing and reinstatement of probation.
On April 20, 2009, a motion to revoke probation was filed in lieu of commencement of a new misdemeanor case. A probation report prepared in May 2009 stated the following. On April 17, 2009, Long Beach Police Officers responded to a spousal abuse call, in which the caller reported that Russell had his girlfriend or wife in a headlock. Officers discovered Russell and the woman walking through a fast food restaurant parking lot, arguing loudly. The officers detained the couple. Russell falsely identified himself with his brother’s name and birth date. When his true identity was discovered, he told officers he had lied because he did not wish to go to jail again.
Russell had reported to the probation department once a month as instructed with the exception of an April 9, 2009 appointment, which he missed. Neither the Caltrans office where Russell claimed to have registered, nor the Long Beach Caltrans office, had any record of his enrollment in the program. He owed $3,609 in fees and fines, but had made no payments. The probation report concluded: “It appears the defendant is in violation of his probation grant at this time as he has sustained a new arrest for giving false information to officers.... [I]t is felt that he is no longer suitable for community based supervision.” Accordingly, the report recommended probation be revoked and sentence be pronounced.
On June 23, 2009, the trial court held a probation revocation hearing. It found Russell in violation of probation, but reinstated probation on the same terms and conditions with modifications that he serve jail time and enroll in Caltrans within 48 hours.
3. June 2010 revocation of probation and sentence.
On February 23, 2010, a probation report was filed entitled, “Regarding Desertion of Probationer.” The report explained: “The defendant last reported to the Long Beach Probation Office on 08-18-09 at which time he was given a return appointment for 09-24-09 at 3 PM. However, he did not report for that appointment. He has not maintained contact with probation since.” The probation officer had been unable to locate him since that time. He had made no payments toward his fees and fines of $3,609. The report also noted that a warrant had been issued for Russell on December 26, 2009 for inflicting corporal injury on a spouse or cohabitant, and recommended Russell’s probation be revoked. A bench warrant was issued on February 23, 2010. By April 28, 2010, Russell was in custody.
On June 29, 2010, the trial court held another probation revocation hearing, at which the following evidence was adduced. The People’s evidence consisted of a supplemental probation report, admitted into evidence without objection, filed on the date of the hearing. That report stated, “[p]robation records indicate that defendant deserted his probation and the last time he reported to his probation officer was on 8/18/09.” He owed $3,609 to the probation department. He had made no payments and his account was delinquent. He had sustained four new arrests since probation was granted. He “treat[ed] his probation as a right and not the privilege that probation is meant to be....” Nonetheless, the probation officer recommended that Russell be admonished and probation be reinstated, given that he had sufficient time left on his probation period to comply with his conditions of probation.
Lisa Rocco, Russell’s probation officer, testified that on September 29, 2009, Russell’s wife telephoned her to report that Russell was in the hospital and had suffered injuries to his back and hand. Russell did not thereafter call and tell her he was still injured; Rocco did not recall ever receiving such a call from him, nor did her records indicate such a call had been received. She did not recall talking to anyone about his case after September 29. She never had a conversation with Russell regarding his injury in which she offered to provide him with home visits. Russell’s wife was supposed to provide Rocco with documentation regarding the injury, but she was unable to take time away from work and did not do so.
Russell’s wife, Tanisha Nicole Smith, testified that she had telephoned Rocco about Russell’s injury in September 2009. Smith told Rocco that Russell could not report to probation because of his back injury. Due to the injury, he could “hardly walk.” He was “disabled for a few months.” At the time of the June 29, 2010 hearing, he had “just now started getting his back right and walking two months ago.” Smith had been supposed to bring documentation to Rocco, but had begun a new job and was unable to do so. Smith brought the documentation of Russell’s injury to the hearing. She did not know whether Russell was supposed to call in to his probation officer every month. On cross-examination, Smith testified that on December 26, 2009, Russell had been taken into custody after someone reported that Russell was assaulting her.
Russell testified that he had called Rocco “as soon as [he] got out of the hospital” and informed her he was seriously injured. She told him she would make plans for him to “have home visits.” He was staying in Gardena and was unable to travel to Long Beach, where her office was apparently located; he “couldn’t even walk out [of] the motel room.” After that he and his “fiancé”––presumably Smith––each telephoned Rocco several times. He left several messages but never heard back from her. Russell queried why, if he had he not been reporting to the probation department, a warrant had not issued for his arrest on that ground.
The trial court found: “Beyond a reasonable doubt, Mr. Russell, you are in violation of probation. You deserted probation. [¶] Probation is revoked. You’re committed to prison for the high term of three years because of your continuing violations of the law, your long criminal history. That’s 36 months for a violation of section 666 of the Penal Code.” Defense counsel queried, “The last time we were here, the court offered him 16 months.” The court replied, “I changed my mind. Looks like a three-year case. Mr. Russell is incorrigible.” Defense counsel argued, “he has been arrested and some kind [of] police came out to his house on a disturbance. He hasn’t picked up any new cases. This goes back to stealing a case of beer.” The trial court replied, “Mr. Russell is incorrigible[.]”
The record before us does not indicate the trial court made any such offer. However, because the court did not disagree with counsel’s assertion, we assume arguendo that counsel was correct.
DISCUSSION
1. The evidence was sufficient to support revocation of probation.
Russell first contends that the evidence adduced at the probation revocation hearing was insufficient to prove he deserted probation, the basis for the June 2010 probation revocation. We disagree.
A court may revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation....” (§ 1203.2, subd. (a); People v. Galvan (2007) 155 Cal.App.4th 978, 981; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) We apply the substantial evidence standard when reviewing a trial court’s finding of a probation violation. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) The facts supporting revocation of probation may be proved by a preponderance of the evidence. (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066; People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. Galvan, supra, at p. 982; People v. Kelly (2007) 154 Cal.App.4th 961, 965.) The evidence must support a conclusion that the probationer’s conduct constituted a willful violation of the terms and conditions of probation. (People v. Galvan, supra, at p. 982; People v. Zaring (1992) 8 Cal.App.4th 362, 375-379.) Trial courts have great discretion in deciding whether or not to revoke probation. (People v. Kelly, supra, at p. 965; People v. Galvan, supra, at pp. 981-982.) Absent abuse of that discretion, we will not disturb the trial court’s findings. (People v. Kelly, supra, at p. 965.)
Russell contends that the June 29, 2010 supplemental probation report was too conclusory to amount to substantial evidence, and the February 23, 2010 probation report, while in the case file, was never admitted into evidence. He urges, therefore, that the evidence did not prove he was required to report to the probation department after August 18, 2009. Further, he argues that, even if the February 23 probation report is considered, the record is “completely silent on what, if anything” the probation officer directed him to do after she was notified of his accident and inability to travel to Long Beach.
First, we are not convinced the trial court was precluded from considering the February 23, 2010 report, or the other materials filed in the case, although they were not formally admitted into evidence. Section 1203.2, subdivision (b) expressly provides that, “[a]fter the receipt of a written report from the probation officer, ” a court considering whether to revoke probation “shall read and consider the report and... may modify revoke, or terminate the probation of the probationer....” Thus, although the February 2010 probation report was not admitted into evidence at the June 2010 hearing, section 1203.2 required that the court consider it. But even apart from the February 2010 report, the June 2010 supplemental probation report stated that “[p]robation records indicate that defendant deserted his probation and the last time he reported to his probation officer was on 8/18/09.” The probation revocation hearing was held in June 2010; Russell was apparently taken into custody on the bench warrant on April 28, 2010. Therefore, he had failed to report to his probation officer for approximately seven months. Rocco testified that Russell had not telephoned her since his accident, and she did not recall talking to him about home visitations. She did not recall talking to “anybody” about his case after she spoke to Smith on September 29, 2009. The evidence was therefore sufficient to prove Russell had failed to report to or contact his probation officer for approximately seven months.
There was also evidence from which the court could infer Russell knew he had an obligation to report. When asked to explain why he had failed to report after his accident, Russell testified that he and Smith had both called Rocco numerous times and left messages. He also stated, “I was reporting all the time before this happened. Why would I stop, you know, when I get injured just is crazy to me.” Moreover, he complained, “I don’t understand how if I wasn’t reporting, ... why don’t I have a warrant against me until after I got arrested?” From Russell’s statements, the trial court could readily infer that he knew he had an obligation to report to his probation officer in some fashion during the preceding months. The evidence was therefore sufficient to prove he deserted probation.
To the extent Russell’s and Smith’s testimony contradicted that of the probation officer, the trial court was not required to credit the defense testimony. “[W]here the trial court was required to resolve conflicting evidence [to determine whether a defendant violated the conditions of his probation], review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (People v. Kurey supra, 88 Cal.App.4th at pp. 848-849, fns. omitted.)
The evidence was also sufficient to show a willful violation. (See People v. Galvan, supra, 155 Cal.App.4th at p. 982; People v. Zaring, supra, 8 Cal.App.4th at pp. 378-379.) Assuming arguendo Russell could not walk until late April 2010, there was no showing that he was unable to call or write his probation officer. He was hospitalized briefly, and the record does not suggest the injuries to his back and hand precluded him from using the telephone.
People v. Buford (1974) 42 Cal.App.3d 975, 985, cited by Russell, is distinguishable. Unlike in Buford, Russell was not merely “tardy and undependable” in reporting (id. at p. 985); he entirely stopped communicating with his probation officer for seven months. In Buford, “on the few occasions when [the probationer] failed to keep an appointment, he attempted to remedy the situation by making another appointment.” (Ibid.) The evidence did not require such a finding here.
2. Imposition of the high term was not error.
a. The trial court did not violate California Rules of Court, rule 4.435 when it imposed the upper term.
Russell contends the trial court abused its discretion and violated California Rules of Court, rule 4.435, by imposing the upper term due to his post-probation conduct and decision to contest, rather than admit, the probation violation.
Preliminarily, the People point out that the waiver doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Kelley (1997) 52 Cal.App.4th 568, 582.) “Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.’ [Citations.]” (People v. French (2008) 43 Cal.4th 36, 46.) Here, Russell did not object to the trial court’s purported reliance on his probation performance as an aggravating factor. Nevertheless, because he contends his counsel was not given a meaningful opportunity to object, or alternatively was ineffective for failing to raise the issue below, we consider the merits of the claim.
California Rules of Court, rule 4.435(b)(1), formerly rule 435(b)(1), provides in pertinent part that when a court imposes sentence after revoking probation, “[t]he length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.” The rule “clearly prohibits the superior court from considering events subsequent to the grant of probation when determining the length of a prison term upon revocation of probation.” (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163, fn. 2.) The “spirit and purpose of the rule” is to “preclude the possibility that a defendant’s bad acts while on probation” will influence his sentence upon revocation of probation. (Id. at p. 1163.)
California Rules of Court, rule 4.435 does not, however, preclude a sentencing court’s consideration of events occurring between an initial grant of probation and a reinstatement of probation. (People v. Black (2009) 176 Cal.App.4th 145, 150-151; People v. Harris (1990) 226 Cal.App.3d 141, 145.) Harris explained: “the rule allows consideration of circumstances preceding a reinstatement of probation.... [R]einstating probation on modified terms appears to be a new grant of probation within the meaning of the rules.... Thus, nothing in the language of the rules bars considering events predating a reinstatement of probation.” (People v. Harris, supra, at pp. 145-146; see also People v. Downey (2000) 82 Cal.App.4th 899, 917 [Harris permits consideration of a defendant’s performance on probation prior to a reinstatement of probation].) To hold otherwise would “seriously impede a court’s flexibility to deal effectively with the offender who, granted the ‘clemency and grace’ of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity under [former] rule 435(b)(1) would discourage a court from ever reinstating probation. That would further crowd prisons and tend to sacrifice probation’s goals of supervised reform and rehabilitation [citation].” (People v. Harris, supra, 226 Cal.App.3d at p. 147.)
Further, it is axiomatic that a court may consider events occurring subsequent to a probation grant when deciding whether to revoke or reinstate probation. (People v. White (1982) 133 Cal.App.3d 677, 681; People v. Jones (1990) 224 Cal.App.3d 1309, 1316, fn. 4; People v. Ayub (1988) 202 Cal.App.3d 901, 905.)
Our review of the record does not convince us that the trial court relied upon events occurring subsequent to the initial grant of probation as a basis for its imposition of the upper term. The court stated it was imposing the high term because “of your continuing violations of the law, your long criminal history” and because Russell was “incorrigible.” Russell contends these comments demonstrate the court considered his post-probation conduct as a basis for imposition of the upper term. He argues that the court’s words “spoke to the present, not to the past.” He also points to the court’s comment that it had changed its mind about the length of sentence, arguing that the court had no basis to do so absent consideration of his probation performance and decision to contest the alleged probation violation.
We disagree. The court did not explicitly state that it was basing the sentence on Russell’s post-probation conduct, nor is that conclusion implicit in the record. Before probation was granted, Russell had a long criminal history, replete with continuing violations of the law. He could, when probation was originally granted in 2008, have been characterized as incorrigible. As explained in the original probation report, Russell had been sentenced to prison on seven separate felony convictions before committing the instant offense. The court’s statements were thus a fair description of Russell before he was granted probation. Moreover, nothing in the record supports Russell’s speculative argument that the court imposed the high term because he opted to challenge, rather than admit, the probation violation.
In any event, under Harris it was not improper for the trial court to consider, as factors supporting the imposition of the upper term, Russell’s conduct between the initial grant of probation and reinstatement in June 2009. During that period, he was arrested after placing his spouse in a headlock and lying to police about his identity. These facts, which the trial court could properly have considered, further demonstrated Russell’s continuing violations of the law and incorrigible nature.
Imposition of the upper term was not an abuse of discretion. Courts have broad sentencing discretion, and we review a trial court’s sentencing choices for abuse. We reverse only if there is a clear showing the sentence was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583; People v. Downey, supra, 82 Cal.App.4th at pp. 909-910.) A trial court abuses its discretion if it relies upon circumstances that are not relevant to, or that otherwise constitute an improper basis for, the sentencing decision. (People v. Sandoval, supra, at p. 847; People v. Moberly, supra, at p. 1196.)
Under section 1170, when a statute specifies three possible terms, choice of the appropriate term rests within the trial court’s discretion. (§ 1170, subd. (b).) The court may consider the record in the case, the probation report, evidence introduced at the sentencing hearing, and “any other factor reasonably related to the sentencing decision, ” and “shall select the term which, in the court’s discretion, best serves the interests of justice.” (Cal. Rules of Court, rule 4.420(b); § 1170, subd. (b).) The existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband (1996) 13 Cal.4th 622, 728.) As Russell acknowledges, imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendant’s criminal history. (See People v. Black, supra, at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837.) There was therefore no abuse of discretion. (See People v. Sandoval, supra, at p. 837; People v. Carmony (2004) 33 Cal.4th 367, 377; cf. People v. Jones (2009) 178 Cal.App.4th 853, 860.)
b. Purported failure to consider mitigating factors.
In a related vein, Russell urges that the trial court improperly failed to consider the mitigating factor that his most recent prior felony conviction occurred 10 years before the instant crime. (See generally People v. Kelley, supra, 52 Cal.App.4th at p. 582; People v. Goldberg, supra, 148 Cal.App.3d at p. 1162.) We disagree.
As noted ante, the waiver doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott, supra, 9 Cal.4th at p. 353; People v. Kelley, supra, 52 Cal.App.4th at p. 582.) Russell did not object to the sentence on the ground now raised. We consider the merits, however, in light of his contention of ineffective assistance of counsel.
California Rules of Court, rule 4.435 provides that when a prison term is imposed after termination of probation, if the sentence was previously suspended “the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c).” (Cal. Rules of Court, rule 4.435(b)(1).) The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. (Cal. Rules of Court, rule 4.409; People v. King (2010) 183 Cal.App.4th 1281, 1322; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318; People v. Myers (1999) 69 Cal.App.4th 305, 310; People v. Kelley, supra, 52 Cal.App.4th at p. 582; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836.)
The record contains no affirmative indication that the trial court failed to consider the cited mitigating factor. While the court did not expressly reference the fact Russell’s last felony conviction had been suffered 10 years before the instant crime, nothing in the record suggests the court was unaware of this fact. That the court focused its explanatory comments on Russell’s criminal history does not mean it considered only that factor. (People v. Myers, supra, 69 Cal.App.4that p. 310; see also People v. Weaver, supra, 149 Cal.App.4th at pp. 1317-1318 [presuming trial court was aware of, and considered, mitigating circumstance despite the fact that neither the court nor the sentencing documents expressly referred to it].)
3. Fees and fines.
a. Criminal conviction assessment.
The trial court imposed a $30 criminal conviction assessment pursuant to Government Code section 70373. That statute was enacted effective January 1, 2009. Russell entered his plea on July 14, 2008, prior to the date the statute went into effect. As the People concede, under these circumstances the criminal conviction assessment could not properly be imposed and must be stricken. (People v. Davis (2010) 185 Cal.App.4th 998, 1000 [the fee imposed by Government Code section 70373 “does not apply to cases in which the defendant’s conviction, by plea or jury verdict, was rendered before the January 1, 2009 effective date of the statute”]; People v. Lopez (2010) 188 Cal.App.4th 474, 479.) We agree and order the judgment modified accordingly.
b. Duplicative restitution fine and court security fee.
At the 2008 sentencing hearing at which Russell was granted probation, the trial court imposed a $200 restitution fine (§1202.4, subd. (b)) and a $20 court security fee (§ 1465.8, subd. (a)(1)). When the court revoked probation in 2010, it stated, somewhat cryptically, “$200, $30, $30, booking fees.” The abstract of judgment reflects imposition of one $200 restitution fine pursuant to section 1202.4, subdivision (b) and a $30 court security fee pursuant to section 1465.8. Russell contends that the trial court erred in imposing the $200 restitution fine and the $30 court security fee at the 2010 hearing, because the first restitution fine and court security fee were already in effect. (People v. Chambers (1998) 65 Cal.App.4th 819, 823 [trial court has no statutory authority to order a second restitution fine upon revocation of probation because the restitution fine imposed as a condition of probation remained in force]; accord, People v. Arata (2004) 118 Cal.App.4th 195, 203; § 1202.4, subd. (m).) The People agree that duplicative fees cannot be imposed, but assert that the amounts imposed in 2010 were the original fine and fee.
The People’s position is not persuasive. The trial court in 2010 did not state that it was simply confirming the existence of the original fine and fee. Moreover, section 1465.8 was amended effective July 28, 2009 to increase the $20 fee to $30. (Stats. 2009, 4th Ex. Sess. 2009–2010, ch. 22, § 29; People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402, fn. 8.) The trial court’s imposition of a $30 fee, pursuant to an amendment to the statute occurring subsequent to the original hearing, suggests it was imposing a second, duplicative court security fee.
Accordingly, we order the second $200 restitution fine stricken and the record modified to reflect a single $200 fee imposed pursuant to section 1202.4, subd. (b). As noted, at the time of Russell’s conviction, section 1465.8 provided for a $20 fee; this sum, rather than a $30 fee, is applicable to Russell’s case. (See People v. Alford (2007) 42 Cal.4th 749, 753-756.) Accordingly, we order the $30 fee stricken and the record modified to reflect imposition of the $20 fee.
DISPOSITION
The judgment is modified by striking the $30 criminal conviction assessment (Gov. Code, § 70373), the $200 restitution fine (§ 1202.4, subd. (b)), and the $30 court security fee (§1465.8.) imposed on June 29, 2010. The $200 restitution fine and the $20 court security fee imposed on July 14, 2008, remain in effect. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these modifications, and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.