P. v. Brown CA5

California Court of Appeal Mar 15, 2013 No. F064316Unpublished

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Holding. The court held that the trial court's recall of the original sentence and subsequent resentencing of the defendant to a misdemeanor term effectively vacated the previously imposed parole revocation fine.

Issues

Whether a parole revocation fine imposed at an original sentencing remains in effect after the trial court recalls the sentence and imposes a new sentence that does not include a period of parole.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court finds that when the trial court recalled its original sentence, imposition of the fine was effectively vacated.”

“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.”

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F064316 Plaintiff and Respondent, (Super. Ct. No. DF10417A) v.

HERBERT BROWN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.

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-

*Before Wiseman, Acting P.J., Kane, J. and Peña, J.

INTRODUCTION Appellant Herbert Brown contends the parole revocation fine imposed pursuant to Penal Code1 section 1202.45 at the time of his original 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 state prison term of six years. It also assessed a number of

P. v. Brown CA5

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