Appellant Eliodoro Dieguez was convicted of perjury and one count of making a false material statement in support of a workers’ compensation claim, in violation of Insurance Code section 1871.4, subdivision (a)(1).[1]  The jury also found the jurisdictional clause true as to the false material statement count, but not true as to the perjury count.  The trial court granted appellant three years’ felony formal probation, on the condition he serve a 120-day jail term as to which he could apply for electronic home detention.

            On appeal, appellant contends we must reverse his conviction because the trial court failed sua sponte to give either a unanimity instruction pursuant to CALJIC No. 17.01, or an instruction on the element of specific intent to defraud with respect to the charge under section 1871.4.  Both in his direct appeal and by way of petition for writ of habeas corpus, appellant contends he received ineffective assistance of counsel because of the failure of his trial attorney to seek an instruction on specific intent or to challenge the sufficiency of the evidence to confer jurisdiction on Contra Costa County to prosecute him under section 1871.4.  We disagree with all of appellants’ contentions, both on direct appeal and in his writ petition.  We therefore deny the writ and affirm the judgment of the trial court.

Following defendant’s plea of no contest to felony vandalism (Pen. Code, § 594, subd. (b)(2); further undesignated section references are to the Penal Code), the trial court imposed the upper term of three years in state prison but suspended execution of sentence and placed defendant on probation.  Shortly thereafter, defendant admitted violating probation and the trial court imposed the previously suspended sentence.  In doing so, the trial court believed it lacked discretion to reinstate defendant to probation. 

     Defendant appeals contending the trial court failed to recognize its discretion to reinstate defendant on probation.  Defendant also contends the trial court erred in imposing a different restitution fine upon revocation of probation.  We find both contentions meritorious and reverse.