Filed 10/9/15 P. v. Brown CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143414
v.
EDDIE BROWN,                                                         (Alameda County
                                                                     Super. Ct. No. C171180)
         Defendant and Appellant.


         On May 14, 2014, Eddie Brown was convicted on his plea of no contest to the first
degree murder of Roshun Broadnax (Pen. Code, § 187).1 The murder occurred on
July 10, 1987. His sentence included an order to pay a $10,000 parole revocation fine,
suspended unless parole is revoked. (§ 1202.45) Brown contends that the parole
revocation fine is unlawful because section 1202.45 was not enacted until 1995—after
the date of Brown’s offense. The People agree, as do we.
                             I.        FACTUAL AND PROCEDURAL HISTORY
         On July 10, 1987, Broadnax was found strangled to death behind the carport of an
Oakland apartment building. She had several broken fingernails and injuries to her body,
showing signs of a struggle. Three witnesses saw Brown with Broadnax the day before
her body was found. One witness saw Brown and Broadnax enter a house across the
street from the witness’s front door. At about 10:00 or 11:00 p.m., the witness heard the
woman yelling for help for about an hour. Later, the witness observed Brown carry an


         1
             All statutory references are to the Penal Code.

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object across the street into the carport area. A fingernail from the victim’s body was
preserved in evidence, but not tested for trace DNA evidence until April 18, 2012. A
comparison to a sample from Brown in the Combined DNA Index System matched
Brown’s profile, and Brown was charged with the murder. It was alleged that Brown
committed the offense while engaged in the commission of rape (§ 190.2,
subd. (a)(17)(C) [special circumstance requiring imprisonment for life without the
possibility of parole]). On May 14, 2014, Brown pled no contest to first degree murder,
and the special circumstance allegation and other sentencing enhancement allegations
were dismissed.
       At sentencing on September 3, 2014, Brown was sentenced to 25 years to life
imprisonment.2 The sentence terms included imposition of a suspended $10,000 parole
revocation fine under section 1202.45. Brown challenges only that portion of his
sentence imposing the parole revocation fine, alleging that it constitutes ex post facto
punishment.
                                     II.    DISCUSSION
       Article I, section 10, clause 1 of the federal Constitution, and article I, section 9 of
the California Constitution prohibit enactment of ex post facto laws. “Although the Latin
phrase ‘ex post fact’ literally encompasses any law passed ‘after the fact,’ it has long been
recognized by this Court that the constitutional prohibition on ex post facto laws applies
only to penal statutes which disadvantage the offender affected by them.” (Collins v.
Youngblood (1990) 497 U.S. 37, 41.) The high court has stated the prohibition of the ex
post facto clause in simple terms: “Legislatures may not retroactively alter the definition
of crimes or increase the punishment for criminal acts.” (Id. at p. 43; People v.
Castellanos (1999) 21 Cal.4th 785, 791.)
       While the penalty imposed under section 1202.45 arguably relates only to
postconviction conduct, the United States Supreme Court has found otherwise. (Johnson

       2
        Brown made an oral motion to withdraw his plea, which was denied. Brown
obtained no certificate of probable cause (§ 1237.5), and that ruling is not at issue in this
appeal.

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v. United States (2000) 529 U.S. 694, 701 [postrevocation penalty of an additional period
of supervised release relates to the original conviction, not the new conduct].) “Treating
postrevocation sanctions as part of the penalty for the initial offense” is necessary
because “the violative [postconviction] conduct need not be criminal and need only be
found by a judge under a preponderance of the evidence standard, not by a jury beyond a
reasonable doubt. . . . [Additionally,] [w]here the acts of [parole] violation are criminal in
their own right, they may be the basis for separate prosecution, which would raise an
issue of double jeopardy if the revocation of supervised release were also punishment for
the same offense.” (Id. at p. 700.)
       The Legislature did not enact section 1202.45 until 1995. (Stats. 1995, ch. 313,
§ 6, p. 1758, eff. Aug. 3, 1995.) In People v. Callejas (2000) 85 Cal.App.4th 667, our
colleagues in the Second District Court of Appeal relied on Johnson v. United States,
supra, 529 U.S. 694, in concluding that imposition of a parole revocation fine under
section 1202.45 “is clearly a postrevocation penalty and, under Johnson, we must
‘attribute postrevocation penalties to the original conviction.’ Therefore, applying
section 1202.45 to Callejas, whose underlying crime preceded the enactment of that
statute, would violate ex post facto principles.” (Callejas, at p. 678, fns. omitted; see
People v. Flores (2009) 176 Cal.App.4th 1171, 1181–1182.) The People concede that the
fine should be stricken.
                                      III.   DISPOSITION
       The judgment is modified by striking the parole revocation fine imposed under
section 1202.45. The clerk of the Alameda County Superior Court is directed to prepare
an amended abstract of judgment. As so modified, the judgment is affirmed.




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                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




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