P. v.
Filed 4/2/13 P. v. Moore CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH MOORE,
Defendant and Appellant.
B236605
(Los Angeles
County
Super. Ct.
No. BA360190)
APPEAL from
a judgment of the Superior Court
of
County.
Robert J. Higa, Judge.
Affirmed as modified.
Gail
Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
>
On October 4, 2011, the trial court
found defendant Kenneth Moore in violation of probation. On October
5, 2011, the trial court ordered executed an eight-year prison
sentence that had previously been imposed and suspended.
Defendant
appeals on the grounds that: (1) the trial court erred in not sentencing him
under Penal Code section 1170, subdivision (h);
the restitution fine and parole revocation fine imposed on October 5,
2011, must be stricken because the court had previously imposed these fines. Also, because defendant is not subject to
parole under section 3451, both parole revocation fines must be stricken.
FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2010, defendant Kenneth
Moore pleaded “no contest†to one count of selling cocaine in violation of
Health and Safety Code section 11352, subdivision (a). He admitted having suffered three prior
prison terms within the meaning of section 667.5, subdivision (b).
The trial
court sentenced defendant to eight years in state
prison. The sentence consisted of
five years in count 1, plus three consecutive one-year terms for the three
section 667.5, subdivision (b) enhancements. The trial court suspended
execution of sentence and placed defendant on probation for a period of five
years.
Defendant
was charged with the June 17, 2011
theft of several items from a Target store.
The trial court summarily revoked his probation on July 25, 2011.
After a contested revocation hearing, the trial court found defendant to
be in violation of probation, and defendant’s probation remained revoked.
suspended sentence of eight years be in full force and effect.
Defense
counsel argued that the trial court was required to sentence defendant to
county jail under the recently amended section 1170, subdivision (h). The prosecutor contended that this section
did not apply because defendant had already been sentenced when placed on
probation, and the trial court agreed.
The trial court sentenced defendant to prison for eight years and
imposed a restitution fine of $250 and a parole revocation fine of $250, which
it stayed.
DISCUSSION
I. Application of Amended Section 1170,
Subdivision (h)
A. Argument
Defendant
contends that the trial court should have sentenced him to county jail under
section 1170, subdivision (h), since, at the time of his October 5, 2011 sentencing, the offenses he
committed were punishable by imprisonment pursuant to section 1170, subdivision
(h). Defendant did not fall under any of
the exceptions that would have required his sentence to be served in state
prison. (§ 1170, subd. (h)(3).) Although an eight-year prison term was
imposed with a stay of execution on January 12, 2010, the trial court’s actions
at the October 5, 2011 hearing constituted a sentencing within the meaning of
section 1170, subdivision (h)(6).
B. Relevant Authority
“The
Realignment Act ‘enacted sweeping changes to long-standing sentencing
laws,’ including replacing prison commitments with county
jail commitments for certain felonies and eligible defendants. Section 1170, subdivision (h)(6) specifies
the Act will be effective for all persons sentenced on or after October 1, 2011.†(People
v. Clytus (2012) 209 Cal.App.4th 1001, 1004, fn. omitted.) Section 1170, subdivision (h)(2) provides
that “a felony punishable pursuant to this subdivision shall be punishable by
imprisonment in a county jail for the term described in the underlying
offense.†Health and Safety Code section
11352, subdivision (a) provides that those who violate that statute “shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170 of the
Penal Code for three, four, or five years.â€
C. No Abuse of Discretion
In
People v. Gipson (Feb. 28, 2013, B241551) ___
Cal.App.4th ___ [2013 Cal.App. LEXIS
152] (Gipson), this court noted that
Division Eight of our district had held that, for purposes of the Realignment
Act, a defendant is sentenced on the date that a trial court orders execution
of a previously imposed but suspended sentence.
(Gipson, at p. ___ [at pp.
*1-*2]; see People v. Clytus,
1009.) We disagreed with
announced and imposed even if execution of the sentence does not happen until a
later date.†(Gipson, at p. ___ [at p. *2].)
We observed
in Gipson that section 1170,
subdivision (h)(6) clearly applies the Realignment Act to “‘any person
sentenced on or after October 1, 2011,’â€
without qualification. We concluded that
the sentencing referred to in this provision plainly meant the occasion when
the trial court first announced and imposed the sentence as opposed to the
occasion when the sentence was executed.
(Gipson, supra, ___ Cal.App.4th at p. ___ [at p. *9].) We declined to force additional meaning into
the word “sentenced†with the result that “sentenced†in reality would mean
that the sentence was both imposed and executed. (Ibid.)
We relied
on People v. Chagolla (1984) 151
Cal.App.3d 1045 for the principle that a trial court is without jurisdiction to
modify or change the final judgment, and it is a final judgment that occurs
when a sentence is imposed and its execution suspended. (Gipson, supra, ___
Cal.App.4th at p. ___ [at pp. *10-*11];
People v. Chagolla at p.
1049.) In the instant case, as in
had jurisdiction only to order the execution of the previously imposed prison
sentence. (Gipson, supra, ___
Cal.App.4th at p. ___ [at p. *11].)
Accordingly, defendant was sentenced on January 12, 2010, and his sentence to state prison
does not violate the Realignment Act.
Defendant
argues alternatively that federal and state equal protection principles require
that he be sentenced pursuant to section 1170, subdivision (h). He maintains that excluding felons whose
sentences were imposed and stayed before October 1, 2011, but ordered to be in full force and
effect after that date, treats that individual differently from individuals
whose sentences were both imposed and executed after October 1, 2011, for no reason related to the
purpose of section 1170, subdivision (h).
Because the purpose of the Realignment Act is to improve public safety
by realigning low-level offenders into a system that facilitates their re-entry
into society, there is no rational basis for the disparate treatment. Defendant asserts that he is precisely the
type of person that the realignment policies intended to help reintegrate into
society, with the end result of increased public safety.
We reject
defendant’s equal protection argument and agree with the court in
353 (Lynch), which stated that,
“[t]he right to equal protection of the law generally does not prevent the
state from setting a starting point for a change in the law. ‘[T]he Fourteenth Amendment does not forbid
statutes and statutory changes to have a beginning and thus to discriminate
between the rights of an earlier and later time.’ [Citation.]
The same rule applies to changes in sentencing law that benefit
defendants.†(Id. at p. 359.)
specify that [punishment-reducing] statutes are prospective only, to assure that
penal laws will maintain their desired deterrent effect by carrying out the
original prescribed punishment as written.’â€
(Lynch, supra, 209 Cal.App.4th at p. 360; see also People v. Brown (2012) 54 Cal.4th 314, 328-330 [no equal protection
violation in prospective application of former § 4019, granting increased
conduct credits]; People v. Floyd
(2003) 31 Cal.4th 179, 188-191 (Floyd)
[no equal protection violation in prospective application of Proposition 36,
the Substance Abuse and Crime Prevention Act of 2000].) The Lynch
court went on to note that, “[s]ince prospective application of the Realignment
Act does not affect a fundamental liberty interest and does not involve a
suspect classification, it need only be reasonably related to a rational state interest. That interest, preserving the criminal law’s
deterrent effect, was identified in Kapperman
and reiterated by the Supreme Court in Floyd.†(Lynch,
supra, at pp. 360-361.)
additional justification for prospective application, i.e., that “[t]he
Legislature may experiment individually with various therapeutic programs
related to criminal charges or
convictions,†and prospective application permits the Legislature to control
the risk of these experiments. (
“The Realignment Act is, if nothing else, a significant experiment by
the Legislature.†(Ibid.) The Legislature has a
rational interest in limiting the potential costs of the experiment, and
prospective application is reasonably related to this goal. If the experiment results in a worthwhile
policy, the Legislature may then extend the Realignment Act to all criminal
defendants. (Ibid.)
Finally,
like defendant here, the defendant in Lynch
asserted that prospective application did not further the stated purpose of the
legislation. (Lynch, supra, 209
Cal.App.4th at pp. 361-362.) As stated
in Lynch, the Legislature need not
identify every possible reason in support of a classification, and statutes
that do not involve fundamental rights or suspect classifications are presumed
to be valid. (Id. at p. 362.) Defendant’s
arguments are without merit.
II. Fines
A. Defendant’s Argument
Defendant
contends that the $250 fines imposed on October
5, 2011, must be stricken, since the court had already imposed a
$200 restitution fine and a $200 parole revocation fine on January 12, 2010.
He next argues that both parole revocation fines must be stricken
because he is no longer eligible for parole, but rather is subject to community
supervision under section 3451.
Section
1202.4, subdivision (b) requires the trial court to impose a separate and
additional restitution fine in every case where a person is convicted of a
crime, unless there are extraordinary reasons for not doing so. (§ 1202.4, subd. (b).) However, “a trial court has no statutory
authority to order a second restitution fine upon revocation of
probation.†(People v. Arata (2004) 118 Cal.App.4th 195, 201-202; see
819, 821-823 [trial court exceeded its statutory authority when imposing a
second restitution fine, which must be stricken].) A restitution fine, imposed as a condition of
probation, “survives the probationary term.â€
(Arata, at p. 201.) The failure to object to the imposition of a
second restitution fine does not forfeit appellate review. (Chambers,
at p. 823.) Accordingly, the $250
restitution fine imposed on October 5,
2011, must be stricken.
At the time
of defendant’s 2010 sentencing, section 1202.45 provided that the sentencing
court had to impose a parole revocation restitution fine in addition to the
section 1202.4, subdivision (b) restitution fine in every case where a person
was convicted of a crime and the sentence included a period of parole. (Stats. 2007, ch. 302, § 15.) Both fines were to be in the same amount. Defendant’s sentence included a period of
parole of three years. As we have
discussed, the original restitution fine in the amount of $200 remained in
effect following the revocation of defendant’s probation. Accordingly, any additional fine under
section 1202.45 cannot exceed $200.
Because we have concluded that defendant’s sentencing occurred in 2010,
a parole revocation restitution fine of $200 was properly imposed.
Section
3451 forms part of the Postrelease Community Supervision Act of 2011, which was
part of the Realignment Legislation. (§
3450; Stats. 2011, ch. 15, §§ 1, 479.)
Section 3451 provides:
“Notwithstanding any other law and except for persons serving a prison
term for any crime described in subdivision (b), all persons released from
prison on and after October 1, 2011, or, whose sentence has been deemed served
pursuant to Section 2900.5 after serving a prison term for a felony shall, upon
release from prison and for a period not exceeding three years immediately
following release, be subject to community supervision . . . .†(§ 3451, subd. (a).) Under this statute, it appears that when defendant
is released from prison, he will be subject to community supervision, since
none of the exceptions in subdivision (b) apply to him.
Section
1202.45, subdivision (b), currently provides:
“In every case where a person is convicted of a crime and is subject to
. . . postrelease community supervision under Section 3451 . . . the court
shall, at the time of imposing the restitution fine pursuant to subdivision (b)
of Section 1202.4, assess an additional postrelease community supervision
revocation restitution fine . . . in the same amount as that imposed pursuant
to subdivision (b) of section 1202.4, that may be collected by the agency
designated pursuant to subdivision (b) of Section 2085.5 by the board of
supervisors of the county in which the prisoner is incarcerated.†Parole revocation restitution fines and
postrelease community supervision fines are suspended unless the person’s
parole or postrelease community supervision is revoked. (§ 1202.45, subd. (c).) Therefore, even if the trial court that
executed defendant’s suspended sentence should have altered the judgment to
label the second fine as a postrelease community supervision fine, the fine
would have been in the same amount as the parole revocation restitution fine,
and defendant suffered no prejudice.
Given that any such fine is suspended until such time as defendant’s
postrelease supervision is revoked, which may never occur, and given that the
provisions of the Realignment Act constitute a significant experiment (
resentencing on that point to be a prudent use of judicial resources.
DISPOSITION
The $250
restitution fine (§ 1202.4, subd. (b)) and the $250 parole revocation
restitution fine (§ 1202.45) imposed on October
5, 2011, are stricken. In
all other respects, the judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ, J.
name="_ftn1" title="">[1] All
further references to statutes are to the Penal Code unless stated
otherwise.
name="_ftn2" title="">[2] The
People subsequently moved to dismiss the theft case that resulted in revocation
of probation.
