P. v. Brown
Filed 3/14/13 P. v. Brown CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
HERBERT BROWN,
Defendant and
Appellant.
F064316
(Super.
Ct. No. DF10417A)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
Rex
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Appellant
Herbert Brown contends the parole revocation fine imposed pursuant to Penal
Code
sentence should be stricken. Respondent
maintains that because the original sentence was recalled, the fine is no
longer an issue. Respondent does
acknowledge, however, that if the court were to find imposition of the fine
remained in effect, the fine should be stricken. The court finds that when the trial court
recalled its original sentence, imposition of the fine was effectively
vacated. Therefore, the court will
affirm the sentence imposed April 17,
2012.
PROCEDURAL BACKGROUND
In a felony
complaint filed June 15, 2011,
the Kern County District Attorney alleged appellant committed two violations of
indecent exposure pursuant to section
314, subdivision 1. It was further
alleged, as to both counts, that appellant had seven prior strikes within the
meaning of section 667, subdivisions (c) through (j), and section 1170.12,
subdivisions (a) through (e).
On June 20, 2011, appellant was
arraigned; the court entered not guilty pleas, and all allegations were denied. The public defender was appointed.
Assisted by
counsel, on December 19, 2011,
appellant pled no contest to one count of indecent exposure pursuant to a plea
bargain. The second count alleged was
dismissed by the People in the furtherance of justice.
Thereafter,
appellant moved to withdraw his plea, alleging it was entered by mistake,
ignorance, or incomplete legal advice.
The People opposed the motion, and appellant replied thereto.
On January 25, 2012, the court
denied appellant’s motion and proceeded to sentencing. In accordance with the plea bargain, the
court denied probation and sentenced appellant to a total
including a restitution fine pursuant to section 1202.4 and a parole revocation
fine pursuant to section 1202.45.
Appellant
filed a notice of appeal on January 25, 2012. On February 29,
2012, appellant filed an amended notice of appeal.
On April 17, 2012, the trial court
recalled its earlier sentence. After
amending count 1 of the complaint to allege a misdemeanor violation of section
314, the trial court denied probation and sentenced appellant to 447 days in
custody. He was also required to
register as a sex offender pursuant to section 290. Appellant then received credit for a total of
447 days.
FACTUAL BACKGROUND
On June 3, 2011, while in the
custody of California Department of Corrections and Rehabilitation, appellant
was observed by a female correctional officer to be engaging in lewd
conduct. Specifically, his pants were
down around his ankles and he was masturbating in his cell. Despite being asked to stop, appellant
continued through to sexual release. Thereafter,
he was extracted from his cell and housed in the administrative segregation
unit.
The
Fine Imposed Pursuant to Section 1202.45, a Parole Revocation Fine, Was Vacated
When the Court Recalled Its Original Sentence and Subsequently Resentenced
Appellant to a Misdemeanor Term and Credit for Time Served
Appellant
maintains that a parole revocation fine imposed when he was originally
sentenced to a term of six years in state
prison should be stricken as a result of resentencing where he was
sentenced as a misdemeanant. Respondent
contends that when the trial court recalled its original sentence, that
sentence was vacated and, hence, no parole revocation fine remains outstanding. The court agrees.
At the time
of appellant’s sentencing, section 1202.45 provided that
“[i]n every case where a person is convicted of a crime
and whose sentence includes a period of parole, the court shall at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional parole revocation restitution fine in the same amount as
that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution
fine shall not be subject to penalty assessments …, and shall be suspended
unless the person’s parole is revoked.â€
(Former § 1202.45.)
“A sentence resulting in imprisonment in the state prison
pursuant to Section 1168 or 1170 shall include a period of parole supervision
or postrelease community supervision, unless waived, or as otherwise provided
in this article.†(§ 3000, subd.
(a)(1).)
Because
appellant originally received a commitment to state prison, imposition of the
parole revocation fine was required on January 25,
2012. Nonetheless, the trial
court later granted a defense motion to recall the sentence imposed on that
date.
Section
1170, subdivision (d) provides that a trial court can recall a sentence on its
own motion within 120 days after committing a defendant to prison. (Dix v.
Superior Court (1991) 53 Cal.3d 442, 455.)
It may do so for any lawful reason rationally related; it is not limited
to correcting a disparate sentence. (
1465, 1473; People v. Alanis (2008)
158 Cal.App.4th 1467, 1475.) Here, the
trial court recalled its sentence within the required time frame, or
approximately 83 days after appellant was originally sentenced. Additionally, it appears the trial court did
so for a reason rationally related to lawful sentencing. At resentencing, reference was made to a 1987
abstract of judgment, and it can be reasonably inferred the document affected
subsequent treatment of the crime.
Further,
the statute specifies how the offender is to be resentenced: “as if he or she had not previously been
sentenced.†(§ 1170, subd.
(d).) Thus, the trial court’s recall of
the original sentence placed appellant in a position similar to that as if he
had not been sentenced at all. In
effect, then vacating all fines imposed on January 25, 2012.
Because
appellant was resentenced to a term of 447 days in custody, and was given
credit for time served,
name="_ftnref4" title="">[3] the sentence imposed on April 17, 2012,
did not include a period of parole. In
the absence of a sentence including a period of parole, that sentence would not
include a parole revocation fine.
name="_ftnref5" title="">[4] In fact, when the trial court resentenced
appellant, it made no mention of any fine, nor did it impose any fine.
Therefore,
the court finds that the trial court’s recall of the original sentence that
provided for a period of parole, in favor of a later sentence that did not,
effectively vacated any fine previously imposed pursuant to section 1202.45.
DISPOSITION
The
judgment imposed April 17, 2012, is affirmed.
name="_ftn1" title="">*Before
Wiseman, Acting P.J., Kane, J. and Peña, J.
name="_ftn2" title="">[1]All
further statutory references are to the Penal Code unless otherwise indicated.
