P. v. Everette
Filed 3/8/13 P. v. Everette CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRIS EVERETTE,
Defendant and Appellant.
E055145, E055146
(Super.Ct.Nos. RIF1102210 &
RIF10005064)
OPINION
APPEAL from the Superior Court of
County. J. Thompson
Hanks, Judge. Affirmed in part; reversed
in part with directions.
John F. Schuck, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, Deputy
Attorneys General, for Plaintiff and Respondent.
Introduction
Defendant Chris
Everette seeks reversal of his conviction for
(Health & Saf. Code § 11350, subd. (a)), because it is a lesser included
offense of one of his other convictions, possession of cocaine base for sale. (Health & Saf. Code § 11351.5.) He also asks that his parole revocation
restitution fine be dismissed. (Pen.
Code § 1202.45.)
name="_ftnref1" title="">[1] We will reverse the possession charge and
clarify what revocation restitution fines he is required to pay.
Facts
and procedural History
name="_ftnref2" title="">[2]
Defendant is 58 years old
and a long-time drug addict who has been smoking cocaine for more than 20
years. On April 23, 2011, he was on
active (but “non-revocableâ€) parole
while in possession of six individually-wrapped chunks of rock cocaine
concealed inside a ChapStick container, another six individually-wrapped chunks
inside a Krazy Glue container, and one separately-wrapped chunk in his pocket.
Defendant was charged by
amended information with, among other things, possession of cocaine base for
sale (Health & Saf. Code § 11351.5 (count 1)); and possession of cocaine
base (Health & Saf. Code § 11350, subd. (a) (count 2).) In relation to count 1, the information
alleged that defendant had a prior drug transportation conviction (Health &
Saf. Code §§ 11352 & 11370.2, subd. (a)).
The information further alleged that he had served three prior prison
terms without remaining free of confinement for a period of five years after
his release. (§ 667.5, subd. (b).)
On October 6, 2011, a jury convicted defendant of counts 1 and 2. In a separate proceeding on October 11, 2011, the trial court found the allegation of a prior
transportation conviction true, struck one of the three prison priors, found
the remaining two true, and referred the matter to probation for an evaluation
and report.
On November 14, 2011, the court sentenced defendant to a split term of 12
years under the Criminal Justice Realignment Act of 2011 (§ 1170, subd. (h)). Defendant was given nine years for his
current drug offenses, plus three consecutive
years for the probation violations. The
sentence was to be served as six years in jail and six years on supervised
release. In addition, in connection with
the current offenses, the court orally imposed a “parole restitution†fine of
$200. In connection with the violation
of probation case, the court said, “Also, he has to pay the restitution fine of
$200. Parole restitution of $200, stayed
unless parole is revoked.†The court
asked defendant if he understood and accepted the supervised release terms
applicable to both his cases. After
conferring with his attorney, who assured the court that she had explained the
sentence to her client, defendant said he accepted the terms. Defendant and his attorney both signed the
sentencing memorandum which included the terms and detailed the fines being
imposed. Two weeks later, on November 28, 2011, the court modified the
sentence. The split of defendant’s
nine-year sentence for the current convictions was changed to five years in
county jail and four years on supervised release; and the three-year term for
the violation of probation conviction was made concurrent rather than
consecutive to the nine years. (§ 1170,
subd. (h)(5)(B)). The revised sentencing
memorandum form reflected these changes.
The memorandum also included a reduction in the section 1202.4,
subdivision (b) restitution fine from $1800 to $200, the imposition of a $200
probation revocation restitution fine pursuant to section 1202.44, a
recalculation of credit for time served, and some minor changes regarding the
times within which he would need to report to the enhanced collections
division. At the sentencing hearing,
defense counsel did not object to any of the terms. On December 6, 2011, however, counsel filed a
notice of appeal.
Discussion
Defendant first argues that
his conviction for possession of illegal drugs, specifically cocaine base
(Health & Saf. Code, § 11350, subd. (a)), must be vacated because it is a
lesser included offense of possession of cocaine base for sale (Health &
Saf. Code, § 11351.5). The People agree.
Generally, multiple
convictions may not be based on
necessarily included offenses. (
1226-1227, 1229.) “[I]f the statutory
elements of the greater offense include all of the elements of the lesser
offense, the latter is necessarily included in the former.†(Id.
at pp. 1227, 1229.) “Under the clear
language of the statutes, possession of cocaine base within the meaning of
section 11350 is a lesser necessarily included offense of possession of cocaine
base for sale in violation of section 11351.5.â€
(People v. Adams (1990) 220
Cal.App.3d 680, 690.) Accordingly, here,
defendant’s conviction for possession of cocaine base cannot stand. Based on the foregoing, we reverse the
conviction for count 2.
Revocation
Restitution Fines
Parole
Defendant’s second argument
is that his parole revocation fines must be stricken because, under the
realignment statute, he has been sentenced to jail, not prison, and therefore,
he is not subject to a period of parole when he is released to begin his period
of mandatory supervision. Thus, he
cannot be subject to a parole revocation restitution fine. The People agree that a parole revocation
fine does not apply where a sentence does not include a period of parole. (People
v. Ybarra (2008) 166 Cal.App.4th 1069, 1097.) Because defendant is being sentenced to jail
rather than prison, he is not subject to a period of parole or its accompanying
parole revocation restitution fine. On
this point, we agree with the parties and will amend the fines as discussed in
more detail below.
Probation
The People go on to assert,
however, that “Obviously, the trial court misspoke[,]†when it purported to be
imposing a parole revocation fine of
$200, and meant instead to be imposing a probation
revocation fine of $200. The People
support their position by pointing out that, although generally the oral pronouncement
of sentence prevails, in this case a “fair reading†shows that the court meant
to impose a probation revocation fine as a term of defendant’s supervised
release. They note that the Clerk’s
Transcript and sentencing memorandum record the fine as a “probation revocation
restitution fine†pursuant to section 1202.44.
Defendant responds that it
makes no difference whether the fine was a probation revocation restitution
fine or a parole revocation restitution fine.
In his view, both are improper because defendant was actually sentenced
to jail for his current crime and for his violation of probation in the earlier
case. Thus, he reasons, he “is not
subject to a probationary term.†In
addition, he maintains, “release on mandatory supervision under section 1170,
subdivision (h)(5)(B) is not release
on probation.†Therefore, he concludes,
imposition of a probation revocation restitution fine was, like imposition of a
parole revocation restitution fine, improper.
We agree with the People
that when the court said, “Also, he has to pay the restitution fine of
$200. Parole restitution of $200, stayed
unless parole is revoked [,]†it likely misspoke, at least as to the second
sentence. The court made the statement
during that portion of the hearing in which it was discussing defendant’s
probation violation convictions. Thus,
insofar as it may have been referring to the probation revocation restitution
fine due for defendant’s violation of the probation he had been granted on
October 26, 2010, for his offense of October 22, 2010, the court’s first
sentence stated the law correctly. That
fine was $200; in committing the current offenses, defendant violated the
probation he had been granted in the earlier cases. He must, therefore, pay the fine.
It was the second
sentence that appears to have been a slip of the judicial tongue. As we have said, the court could not have
meant to impose a parole revocation
fine for either the probation violation conviction or for the current offense
conviction, because there was no period of parole to follow defendant’s release
from the jail confinement portion of his split sentence. However, despite its terminology
(understandable in a period of transition in the law) we conclude that the
court correctly imposed a restitution fine that would become effective should
defendant be re-incarcerated for violating the conditions upon which he had
been granted a period of supervised release.
1202.44
We reach this
conclusion via a joint reading of sections of 1170, 1202.4, and 1202.44 of the
Penal Code, keeping in mind the rule that, when scrutinizing the words of a
statute, courts give the words their usual, ordinary, and commonsense meaning (People
v. Valladoli (1996) 13 Cal.4th 590, 597, 599). The Oxford English Dictionary defines the
word “conditional†as “Subject to, depending on, or limited by, one or more
conditions; not absolute; made or granted on certain terms or stipulations.â€
words of a statute must also be derived from the context in which the words are
used and with reference to the entire statutory scheme so that the whole may be
harmonized and retain effectiveness. (People
v. Pieters (1991) 52 Cal.3d 894, 899.)
The relevant provision of
section 1170 states that the trial court may commit a defendant to county jail
and suspend execution of a concluding portion of the applicable term
“ . . . during which time the defendant shall be supervised
by the county probation officer in accordance with the terms, conditions, and
procedures generally applicable to persons placed on probation, for the
remaining unserved portion of the sentence imposed by the court.†(§ 1170, subd. (h)(5)(B).) Terms and conditions generally applicable to
persons placed on probation or given
“conditional sentences†include revocation restitution fines. To wit: “In every case in which a person is
convicted of a crime and a conditional
sentence or a sentence that includes a period of probation
time of imposing the restitution fine pursuant to subdivision (b) of Section
1202.4, assess an additional probation revocation restitution fine in the same
amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation
restitution fine shall become effective upon the revocation of probation
not be waived or reduced by the court, absent compelling and extraordinary
reasons stated on record.†(§ 1202.44,
italics added.)
Here, the
probation-officer-supervised-release portion of defendant’s sentence was
dependent on his accepting and agreeing to terms and conditions that are
virtually identical to standard terms of probation. (§ 3454, subds. (a)-(s).) Defendant agreed to those terms, and for the
last four years of his nine-year sentence, he will have to abide by them if he
wishes to stay out of jail. (§ 3455,
subds. (a) & (b).) Accordingly,
pursuant to section1202.44, defendant is subject to a revocation restitution
fine in the same amount as the mandatory fine imposed under section 1202.4,
subdivision (b), $200. If he fails to
abide by those conditions, re-offends, and causes his (conditional) mandatory supervised
release to be revoked, the fine which is currently stayed will become
effective.
title="">[6] (§ 1202.44.)
In sum, defendant was given
a sentence that included a conditional release segment; under the language of
section 1202.44, he is subject to a restitution revocation fine should he fail
to abide by the terms and conditions that underlie that conditional release.
Disposition
1) Defendant’s conviction for simple possession
of cocaine base (Health & Saf. Code § 11350, subd. (a)), is reversed. 2) The
Abstract of Judgment is modified to reflect that the $200 probation revocation
fine imposed on October 26, 2010, is now due and payable. 3) The
order that defendant “Pay $200 for Probation Revocation Restitution Fine†in
the minute order of November 28, 2011, is corrected to read “Pay $200 Mandatory
Supervision Revocation Restitution Fine.â€
4) In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] This
appeal consolidates two cases: E055145 and E055146. Because appellate case numbers are assigned
in the order in which appeals are filed, throughout this opinion, record cites
to the transcripts in case E055145, filed with this court on February 29, 2012,
will be “2RT†and “2CT.†Record cites to
transcripts in case E055146, filed with this court on January 10, 2012, will
“1RT†and “1CT.†E055146 concerns a
felony drug-possession conviction (Health & Saf. Code § 11350, subd. (a))
on October 26, 2010, in which defendant pled guilty and was granted 36 months
probation for a crime committed on October 22, 2010. E055145 concerns the current offenses.
