People v. Waring CA2/2

Filed 1/22/14 P. v. Waring CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B247765

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA030739) v.

DANNY RAY WARING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. David B. Gelfound, Judge. Affirmed as modified.

Law Offices of James Koester and James Koester, 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, Scott A. Taryle, and Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.

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The only issue in this case is whether a parole revocation fine (Pen. Code, § 1202.45),1 which was imposed on appellant after the trial court sentenced him to life without the possibility of parole, was unauthorized. For reasons that follow, we have determined that it was. Accordingly, we strike the parole revocation fine and otherwise affirm. PROCEEDINGS BELOW2 In February 2002, in Los Angeles Superior Court case number PA032653, appellant was convicted by jury of two counts of first degree murder (§ 187, subd. (a)), and a firearm use enhancement (§ 12022.5, subd. (d)). The trial court sentenced appellant to two consecutive terms of life without the possibility of parole for the murders, plus 25 years to life for the firearm enhancement. Appellant was also found to be in violation of probation in Los Angeles Superior Court case number PA030739 and was sentenced to an aggregate term of six years, six months. As to both cases, appellant was ordered to pay a parole revocation fine pursuant to section 1202.45 and a restitution fine pursuant to section 1202.4, subdivision (b).3 On December 4, 2003, this Court affirmed appellant’s convictions in case number B157656. Appellant did not raise the issue of the legality of the parole revocation fine at that time. On February 26, 2013, appellant filed a pro. per. motion to strike or modify the court ordered restitution, fees or fines that had been imposed in both case numbers PA030739 and PA032653. On February 27, 2013, the motion was denied.