P. v. Moore CA2/2

Filed 4/2/13 P. v. Moore CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B236605

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA360190) v.

KENNETH MOORE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles 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);1 and (2) 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.2 The trial court ordered that the previously 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