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

       3
         Section 1202.45 then read: “In every case where a person is convicted of a
crime and whose sentence includes a period of parole, the court shall at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an
additional parole revocation restitution fine in the same amount as that imposed pursuant
to subdivision (b) of Section 1202.4.” (Stats. 2007, ch. 302, § 15.) This language now
appears as subdivision (a) of the current statute. (§ 1202.45, subd. (a).)


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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; 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. 6125.) The new subdivision
provides:
       “In every case where a person is convicted of a crime and is subject to . . .
       postrelease community supervision under Section 3451 . . . , the court shall, at the
       time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
       assess an additional postrelease community supervision revocation restitution fine
       . . . in the same amount as that imposed pursuant to subdivision (b) of
       Section 1202.4, that may be collected by the agency designated . . . by the board of
       supervisors of the county in which the prisoner is incarcerated.” (§ 1202.45, subd.
       (b).)

       The Attorney General does not dispute the new subdivision of section 1202.45,
providing for a “postrelease community supervision revocation restitution fine,” cannot


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be applied retroactively to defendant without violating the ex post facto clause.4 (Cruz,
supra, 207 Cal.App.4th at pp. 672–673, fn. 8 [“imposition of a parole revocation
restitution fine pursuant to section 1202.45 is viewed as punitive for ex post facto
purposes”], citing People v. Flores (2009) 176 Cal.App.4th 1171, 1181–1182
[98 Cal.Rptr.3d 450].) Instead, the Attorney General urges us to affirm imposition of the
“parole revocation restitution fine” on defendant on the ground it is authorized under, and
in fact required by, section 1202.44, which was in effect at the time of defendant’s crime
and sentencing (Stats. 2004, ch. 223, § 3, pp. 2432–2433).
       Like section 1202.45, section 1202.44 addresses a secondary restitution fine above
and beyond that required by section 1202.4. It provides:
       “In every case in which a person is convicted of a crime and a conditional
       sentence or a sentence that includes a period of probation is imposed, the court
       shall, at the time of imposing the restitution fine pursuant to subdivision (b) of
       Section 1202.4, assess an additional probation revocation restitution fine in the
       same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This
       additional probation revocation restitution fine shall become effective upon the
       revocation of probation or of a conditional sentence, and shall not be waived or
       reduced by the court, absent compelling and extraordinary reasons stated on
       record. Probation revocation restitution fines shall be deposited in the Restitution
       Fund in the State Treasury.” (§ 1202.44.)

       The Attorney General contends defendant’s eventual period of postrelease
community supervision is substantially equivalent to a “conditional sentence” referenced
in section 1202.44.5 Not so. The Penal Code defines “conditional sentence” to mean
“the suspension of the imposition or execution of a sentence and the order of revocable
release in the community.” (§ 1203, subd. (a).) Defendant has not had imposition or
execution of sentence suspended. On the contrary, sentence was imposed. (See People v.


       4
         The Attorney General does not expressly concede this point, but implicitly does
so by not responding to the point made in defendant’s opening brief.
       5
         The Attorney General does not argue postrelease community supervision is akin
to “probation.” “ ‘[P]robation’ means the suspension of the imposition or execution of a
sentence and the order of conditional and revocable release in the community under the
supervision of a probation officer.” (§ 1203, subd. (a).)


                                             4
Fandinola (2013) 221 Cal.App.4th 1415, 1421 [165 Cal.Rptr.3d 383].) Moreover, a
conditional sentence is only appropriate for infractions and misdemeanors. (§ 1203,
subd. (a); People v. Taylor (2007) 157 Cal.App.4th 433, 437 [68 Cal.Rptr.3d 682] [“A
conditional sentence is the grant of informal or summary probation, and such sentences
are authorized only in misdemeanor cases.”].) Defendant was convicted of, and
sentenced for, a felony.
       Further, if section 1202.44 were read to impose a fine on a community supervision
defendant payable to the state’s restitution fund, that requirement would persist and
confusingly conflict with new subdivision (b) of section 1202.45, which imposes a fine in
the same amount on a community supervision defendant to be paid into county coffers.
In addition, the Attorney General’s sweeping interpretation of the term “conditional
sentence” under section 1202.44 would render that section applicable to parolees, and
make the original provisions of 1202.45, now located in subdivision (a), entirely
superfluous. (People v. Fandinola, supra, 221 Cal.App.4th at pp. 1422–1423.)
Statutory interpretations rendering “ ‘any part of a statute superfluous are to be
avoided.’ ” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083 [54 Cal.Rptr.3d 847].)
       Finally, our interpretation of section 1202.44—that its reference to “conditional
sentence” does not embrace “postrelease community supervision”—correlates with the
Legislature’s perception in 2012 that it needed to add language to section 1202.45
requiring the imposition of a postrelease community supervision revocation restitution
fine to correct “oversights” in the Realignment Act. (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 1210 (2011–2012 Reg. Sess.) as amended April 11, 2012, p. 8.)
If section 1202.44 already provided that authority, there would, of course, have been no
need to amend section 1202.45 to provide for such.
       We therefore conclude the “parole revocation restitution fine” imposed on
defendant under section 1202.45 cannot be salvaged by divining from section 1202.44
authority to impose a “postrelease community supervision revocation restitution fine.”
The simple fact is, that at the time defendant committed his crime and at the time he was
sentenced, there was no provision for a “postrelease community supervision revocation


                                              5
restitution fine.” His situation is exactly why the Legislature amended section 1202.45 to
add subdivision (b), but under the ex post facto clause, he is immune from this corrective
legislation.
                                       DISPOSITION
       The section 1202.45 “parole revocation restitution fine” is stricken, and the trial
court is directed to prepare an amended abstract of judgment reflecting this and to then
promptly forward the amended abstract to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.




                                                  _________________________
                                                  Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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Trial Judge:                            Honorable Jamie Thistlewaite
Trial Court:                            Sonoma County Superior Court


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.




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