People v. Isaac

Filed 2/27/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A135701 v. ELIAS ISAAC, (Sonoma County Super. Ct. No. SCR611424) Defendant and Appellant.

Defendant appeals the imposition of a “parole revocation restitution fine” imposed under Penal Code section 1202.45,1 asserting his sentence, under California’s Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 1), does not include a period of parole. The Attorney General does not contend the fine can be sustained under section 1202.45, but urges it can be upheld under a broad reading of section 1202.44. We conclude there was no statutory basis to impose the fine on defendant and order it struck. BACKGROUND We recite only the facts pertinent to the narrow issue before us. Defendant was convicted by a jury of unlawful possession of a firearm. (Former § 12021, subd. (a)(1).)2 Afterwards, the trial court found defendant had suffered a prior prison conviction that also counted as a sentence-enhancing strike. On June 11, 2012, the trial court sentenced defendant to five years in state prison—two years for the unlawful firearm possession, doubled because of the strike (§§ 1170, subd. (h)(3), 1170.12, subds. (a)(4), (c)(1)), plus

1 All further statutory references are to the Penal Code unless indicated. 2 Section 12021 was recodified at section 29800 effective January 1, 2012. (See § 16000.)

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one year for the prison prior (§ 667.5, subd. (b)). In addition, the trial court imposed a $1,200 restitution fine under section 1202.4 and imposed, but stayed, a matching $1,200 “parole revocation restitution fine” under section 1202.45, to be paid only if parole is ever revoked. DISCUSSION Before the 2011 Realignment Act, a prison sentence ended with a period of parole administered by the State. (Stats. 2010, ch. 219, § 19, p. 1127.) Now, a prison sentence for certain felons ends with county-administered community supervision in lieu of parole. (Stats. 2011, ch. 15, §§ 468, 479, pp. 483, 493; § 3000, subd. (a)(1); § 3000.08, § 3451; see People v. Cruz (2012) 207 Cal.App.4th 664, 671–672 (Cruz) [143 Cal.Rptr.3d 742].) Serious felons remain subject to parole, but felons whose crimes fall short of certain severity criteria are “subject to community supervision” for up to three years if “released from prison on and after October 1, 2011.” (§ 3451, subd. (a).) Community supervision is to be “provided by a county agency designated by each county’s board of supervisors” and should be “consistent with evidence-based practices, including, but not limited to, supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under postrelease supervision.” (Ibid.) Given the nature and timing of defendant’s crime, it is undisputed that he is subject to the Realignment Act and to community supervision, not parole, at the conclusion of his prison term. At both the time of his crime and the time of sentencing, section 1202.45 required, as it had since 1995, imposition of a “parole revocation restitution fine” whenever the sentence included “a period of parole.”3 (Stats. 2007, ch. 302, § 15, p. 3079; Stats. 1995, ch. 313, § 6, p. 1758.) The statute was not amended in conjunction with the Realignment