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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

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THE PEOPLE,

Plaintiff and Respondent,

v.

TYLER L. PHILLIPS,

Defendant and Appellant.

C072874

(Super. Ct. No. 08F08442)

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.