California Court of Appeal, First District, First Division
Honorable Jamie Thistlewaite, Sonoma County Superior Court. (No. SCR611424).
Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Defendant appeals the imposition of a " parole revocation restitution fine" imposed under Penal Code section 1202.45, 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.
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).)  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 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.
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, 143 Cal.Rptr.3d 742 ( Cruz ).) 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."  (Stats. 2007, ch. 302, § 15, p. 3079; Stats. 1995, ch. 313, § 6, p. 1758.) The statute was not amended in conjunction with the Realignment Act, and thus said nothing about community supervision. Subsequently, in Cruz, the court of appeal concluded defendants facing community supervision instead of parole are " not subject to a parole revocation restitution fine." ( Cruz, supra, 207 Cal.App.4th at p. 672, fn. 6, 143 Cal.Rptr.3d 742; see also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184, 91 Cal.Rptr.3d 874 [no parole with a life sentence, so " the parole revocation fine was improperly assessed" ].)
The Legislature soon realized there was a gap in the Realignment Act that needed to be rectified, and in 2012, legislation was introduced to do so. The report of the Senate Committee on Public Safety, for example, warned criminals sentenced under the act " are not paying their victims for the losses they caused by their criminal activity, despite the requirement in California's constitution that victims have a right to restitution from their perpetrators for the losses they suffered, nor are parolees who are serving their parole revocation in county jails instead of state prisons paying their parole revocation fines." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1210 (2011-2012 Reg. Sess.) as amended April 11, 2012, p. 8; see ibid. [" the Realignment plan failed to include any provisions for the collection of restitution by count[ies]" ].) The report urged " [t]hese oversights must be corrected so that crime victims receive the restitution they deserve and so that these prisoners do not receive an unforeseen windfall...." ( Ibid. )
On September 29, 2012, the Governor signed Senate Bill 1210, adding a new subdivision to section 1202.45. (Stats. 2012, ch. 762, § 1, p. ...