Filed 6/2/15 P. v. Escbedo CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068378
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF40610)
                   v.

DANIEL ESCOBEDO,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L.
DuTemple, Judge. (Retired judge of the Tuolumne County Sup. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
         Monique Q. Boldin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Leanne
Le Mon, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Gomes, J. and Detjen, J.
       Defendant Daniel Escobedo was convicted by jury trial of battery by a prisoner on
a nonconfined person (Pen. Code, § 4501.5)1 for an offense he committed on
December 23, 2012. The trial court sentenced him to six years in prison and imposed,
among other things, a $2,240 parole revocation restitution fine pursuant to section
1202.45. On appeal, defendant contends, and the People concede, there was no statutory
basis for the court to impose a parole revocation restitution fine because defendant’s
sentence, under California’s Criminal Justice Realignment Act of 2011 (Realignment
Act; Stats. 2011, ch. 15, § 1), subjects him to community supervision rather than parole
upon his release from custody.
       The parties agree that this issue has been resolved by the recent case of People v.
Isaac (2014) 224 Cal.App.4th 143 (Isaac). In that case, the court explained:

              “Before the Realignment Act, a prison sentence ended with a period
       of parole administered by the state. (Stats. 2010, ch. 219, § 19.) Now, a
       prison sentence for certain felons ends with county-administered
       community supervision in lieu of parole. (Stats. 2011, ch. 15, §§ 468, 479;
       §§ 3000, subd. (a)(1), 3000.08, 3451; see People v. Cruz (2012) 207
       Cal.App.4th 664, 671-672 (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


1      All statutory references are to the Penal Code.


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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;
see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184 [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 Apr. 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
(2011-2012 Reg. Sess.), adding a new subdivision to section 1202.45.
(Stats. 2012, ch. 762, § 1.) 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 … new subdivision of section 1202.45, providing for a
‘postrelease community supervision revocation restitution fine,’ cannot be
applied retroactively to defendant without violating the ex post facto clause.
(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

                                       3
       for ex post facto purposes’], citing People v. Flores (2009) 176 Cal.App.4th
       1171, 1181-1182.) … [¶] … [¶] … 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
       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.” (Isaac, supra, 224
       Cal.App.4th at pp. 145-147, fns. omitted.)
       For the reasons explained by the Isaac court, we conclude defendant’s parole
revocation restitution fine must be stricken.
                                      DISPOSITION
       The $2,240 parole revocation restitution fine imposed pursuant to Penal Code
section 1202.45 is stricken. The trial court is directed to prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.




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