APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. (Super. Ct. No. JCF26701)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part, reversed in part and remanded with directions.
In February 2011, Mayra Mora entered a no contest plea to possession of heroin in violation of Health and Safety Code section 11350, subdivision (a), a nonviolent drug offense. The trial court suspended imposition of sentence, placed Mora on three years' probation and imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b).*fn2
In August 2011, Mora admitted she violated the terms and conditions of probation. The trial court sentenced her to two years in state prison, suspended execution of the sentence and reinstated probation on the same terms and conditions as previously imposed. In December, the court found that Mora had violated probation. The court revoked and reinstated probation, and imposed a 90-day jail sentence.
On May 17, 2012, the trial court determined Mora again violated probation and committed her to state prison for two years, with 332 days credit. The trial court refused to apply the Criminal Justice Realignment Act of 2011*fn3 (Realignment Act or Realignment), which would have allowed Mora to serve her sentence in a locally run community-based corrections program. (§§ 17.5, subd. (a)(5), 1170, subd. (h).) The court imposed a $240 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a $240 parole revocation restitution fine (§ 1202.45).
Mora contends the trial court erred by not applying the Realignment Act when it executed her sentence on May 17, 2012, and committed her to state prison. Relying on People v. Clytus (2012) 209 Cal.App.4th 1001 (Clytus), she asserts Realignment applies to all eligible defendants whose sentences are executed on or after October 1, 2011. Mora argues interpreting Realignment to not apply to a defendant in her circumstances violates equal protection. She also contends the trial court erroneously imposed a duplicate restitution fine under section 1202.4, subdivision (b).
The People argue Mora is not entitled to retroactive application of the Realignment Act because her sentence was imposed before its effective date. They argue the trial court properly executed the sentence under People v. Howard (1997) 16 Cal.4th 1081 (Howard), which distinguishes between orders suspending imposition of sentence and orders suspending execution of previously imposed sentences. (Id. at p. 1087.) The People concede the trial court erred in imposing a duplicate restitution fine. They raise issues concerning the imposition of other fines, which we discuss in part II.
The Trial Court Correctly Determined Realignment Did Not Apply
The Realignment Act significantly changes felony punishment by "[r]ealigning low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs . . . ." (§ 17.5, subd. (a)(5); People v. Lynch (2012) 209 Cal.App.4th 353, 357.) A felon sentenced under Realignment is committed to county jail instead of state prison, may have a concluding portion of his or her sentence suspended in lieu of probation and is not subject to parole under section 3000 et seq. (§ 1170, subd. (h)(1), (2) & (5); Lynch, at p. 357.) "The sentencing changes made by the act . . . shall be applied prospectively to any person sentenced on or after October 1, 2011." (§ 1170, subd. (h)(6).)
The appellate courts are divided on the issue whether Realignment applies to an eligible defendant whose sentence was imposed and suspended before October 1, and whose probation was revoked and the sentence executed on or after October 1. In Clytus, a division of the Second District Court of Appeal held that Realignment applies in such circumstances. (Clytus, supra, 209 Cal.App.4th at p. 1005.) Declining to apply Howard, the Clytus court did not locate any language in section 1170, subdivision (h)(6) to suggest the Legislature intended a different result if a prison sentence was imposed and suspended before October 1, but executed on or after October 1. (Clytus, at pp. 1006-1008.) It reasoned that a trial court executing a suspended sentence as punishment for a probation violation has no discretion to commit a person to state prison for an offense that is no longer prison-eligible. (Id. at p. 1006.)
Recently, another division of the Second District Court of Appeal held that Realignment does not apply to a defendant who was sentenced before October 1, 2011, even if execution of that sentence occurs on or after October 1, 2011. (People v. Gipson (Feb. 28, 2013, B241551) ...