Filed 3/8/13 P. v. Everette CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055145, E055146
v. (Super.Ct.Nos. RIF1102210 &
RIF10005064)
CHRIS EVERETTE,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks,
Judge. Affirmed in part; reversed in part with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.
Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Chris Everette seeks reversal of his conviction for simple possession of
cocaine base (Health & Saf. Code § 11350, subd. (a)), because it is a lesser included
offense of one of his other convictions, possession of cocaine base for sale. (Health &
Saf. Code § 11351.5.) He also asks that his parole revocation restitution fine be
dismissed. (Pen. Code § 1202.45.)1 We will reverse the possession charge and clarify
what revocation restitution fines he is required to pay.
FACTS AND PROCEDURAL HISTORY2
Defendant is 58 years old and a long-time drug addict who has been smoking
cocaine for more than 20 years. On April 23, 2011, he was on active (but “non-
revocable”) parole3 and probation4 for earlier drug offenses when he was arrested while
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 This appeal consolidates two cases: E055145 and E055146. Because appellate
case numbers are assigned in the order in which appeals are filed, throughout this
opinion, record cites to the transcripts in case E055145, filed with this court on February
29, 2012, will be “2RT” and “2CT.” Record cites to transcripts in case E055146, filed
with this court on January 10, 2012, will “1RT” and “1CT.” E055146 concerns a felony
drug-possession conviction (Health & Saf. Code § 11350, subd. (a)) on October 26, 2010,
in which defendant pled guilty and was granted 36 months probation for a crime
committed on October 22, 2010. E055145 concerns the current offenses.
3 Defendant’s parole was subsequent to a two-year prison sentence imposed on
March 19, 2009, for four drug convictions. While in prison, on January 28, 2010, he was
approved for “non-revocable parole” and on June 7, 2010, he was released to “NRPU”
(which we take to mean the “non-revocable parole unit”). Non-revocable parole became
available to non-violent-non-sex offenders after January 25, 2010, via Penal Code section
3000.03. The section provides, for eligible persons, that: “Notwithstanding any other
provision of law, the Department of Corrections and Rehabilitation shall not return to
prison, place a parole hold on pursuant to Section 3056, or report any parole violation to
[footnote continued on next page]
2
in possession of six individually-wrapped chunks of rock cocaine concealed inside a
ChapStick container, another six individually-wrapped chunks inside a Krazy Glue
container, and one separately-wrapped chunk in his pocket.
Defendant was charged by amended information with, among other things,
possession of cocaine base for sale (Health & Saf. Code § 11351.5 (count 1)); and
possession of cocaine base (Health & Saf. Code § 11350, subd. (a) (count 2).) In relation
to count 1, the information alleged that defendant had a prior drug transportation
conviction (Health & Saf. Code §§ 11352 & 11370.2, subd. (a)). The information further
alleged that he had served three prior prison terms without remaining free of confinement
for a period of five years after his release. (§ 667.5, subd. (b).)
On October 6, 2011, a jury convicted defendant of counts 1 and 2. In a separate
proceeding on October 11, 2011, the trial court found the allegation of a prior
transportation conviction true, struck one of the three prison priors, found the remaining
two true, and referred the matter to probation for an evaluation and report.
[footnote continued from previous page]
the Board of Parole Hearings or the court . . . .” Since this species of parole could not be
revoked, it follows that there could be no associated parole revocation or parole
revocation restitution fines.
4 See footnotes one and two, ante, regarding the case for which defendant was on
probation. As stated, defendant was granted probation in the October 2010 case despite
the fact that he was still on (non-revocable) parole following his release from prison after
serving part of his sentence for the March 19, 2009, violation of the same statute.
Defendant violated probation in the October 2010 case when he committed his current
crimes.
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On November 14, 2011, the court sentenced defendant to a split term of 12 years
under the Criminal Justice Realignment Act of 2011 (§ 1170, subd. (h)). Defendant was
given nine years for his current drug offenses, plus three consecutive years for the
probation violations. The sentence was to be served as six years in jail and six years on
supervised release. In addition, in connection with the current offenses, the court orally
imposed a “parole restitution” fine of $200. In connection with the violation of probation
case, the court said, “Also, he has to pay the restitution fine of $200. Parole restitution of
$200, stayed unless parole is revoked.” The court asked defendant if he understood and
accepted the supervised release terms applicable to both his cases. After conferring with
his attorney, who assured the court that she had explained the sentence to her client,
defendant said he accepted the terms. Defendant and his attorney both signed the
sentencing memorandum which included the terms and detailed the fines being imposed.
Two weeks later, on November 28, 2011, the court modified the sentence. The
split of defendant’s nine-year sentence for the current convictions was changed to five
years in county jail and four years on supervised release; and the three-year term for the
violation of probation conviction was made concurrent rather than consecutive to the nine
years. (§ 1170, subd. (h)(5)(B)). The revised sentencing memorandum form reflected
these changes. The memorandum also included a reduction in the section 1202.4,
subdivision (b) restitution fine from $1800 to $200, the imposition of a $200 probation
revocation restitution fine pursuant to section 1202.44, a recalculation of credit for time
served, and some minor changes regarding the times within which he would need to
report to the enhanced collections division. At the sentencing hearing, defense counsel
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did not object to any of the terms. On December 6, 2011, however, counsel filed a notice
of appeal.
DISCUSSION
Defendant first argues that his conviction for possession of illegal drugs,
specifically cocaine base (Health & Saf. Code, § 11350, subd. (a)), must be vacated
because it is a lesser included offense of possession of cocaine base for sale (Health &
Saf. Code, § 11351.5). The People agree.
Lesser Included Offense
Generally, multiple convictions may not be based on necessarily included
offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227, 1229.) “[I]f the statutory
elements of the greater offense include all of the elements of the lesser offense, the latter
is necessarily included in the former.” (Id. at pp. 1227, 1229.) “Under the clear language
of the statutes, possession of cocaine base within the meaning of section 11350 is a lesser
necessarily included offense of possession of cocaine base for sale in violation of section
11351.5.” (People v. Adams (1990) 220 Cal.App.3d 680, 690.) Accordingly, here,
defendant’s conviction for possession of cocaine base cannot stand. Based on the
foregoing, we reverse the conviction for count 2.
Revocation Restitution Fines
Parole
Defendant’s second argument is that his parole revocation fines must be stricken
because, under the realignment statute, he has been sentenced to jail, not prison, and
therefore, he is not subject to a period of parole when he is released to begin his period of
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mandatory supervision. Thus, he cannot be subject to a parole revocation restitution fine.
The People agree that a parole revocation fine does not apply where a sentence does not
include a period of parole. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1097.)
Because defendant is being sentenced to jail rather than prison, he is not subject to a
period of parole or its accompanying parole revocation restitution fine. On this point, we
agree with the parties and will amend the fines as discussed in more detail below.
Probation
The People go on to assert, however, that “Obviously, the trial court misspoke[,]”
when it purported to be imposing a parole revocation fine of $200, and meant instead to
be imposing a probation revocation fine of $200. The People support their position by
pointing out that, although generally the oral pronouncement of sentence prevails, in this
case a “fair reading” shows that the court meant to impose a probation revocation fine as
a term of defendant’s supervised release. They note that the Clerk’s Transcript and
sentencing memorandum record the fine as a “probation revocation restitution fine”
pursuant to section 1202.44.
Defendant responds that it makes no difference whether the fine was a probation
revocation restitution fine or a parole revocation restitution fine. In his view, both are
improper because defendant was actually sentenced to jail for his current crime and for
his violation of probation in the earlier case. Thus, he reasons, he “is not subject to a
probationary term.” In addition, he maintains, “release on mandatory supervision under
section 1170, subdivision (h)(5)(B) is not release on probation.” Therefore, he concludes,
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imposition of a probation revocation restitution fine was, like imposition of a parole
revocation restitution fine, improper.
We agree with the People that when the court said, “Also, he has to pay the
restitution fine of $200. Parole restitution of $200, stayed unless parole is revoked [,]” it
likely misspoke, at least as to the second sentence. The court made the statement during
that portion of the hearing in which it was discussing defendant’s probation violation
convictions. Thus, insofar as it may have been referring to the probation revocation
restitution fine due for defendant’s violation of the probation he had been granted on
October 26, 2010, for his offense of October 22, 2010, the court’s first sentence stated the
law correctly. That fine was $200; in committing the current offenses, defendant violated
the probation he had been granted in the earlier cases. He must, therefore, pay the fine.
It was the second sentence that appears to have been a slip of the judicial tongue.
As we have said, the court could not have meant to impose a parole revocation fine for
either the probation violation conviction or for the current offense conviction, because
there was no period of parole to follow defendant’s release from the jail confinement
portion of his split sentence. However, despite its terminology (understandable in a
period of transition in the law) we conclude that the court correctly imposed a restitution
fine that would become effective should defendant be re-incarcerated for violating the
conditions upon which he had been granted a period of supervised release.
Supervised release is a conditional sentence under section 1202.44
We reach this conclusion via a joint reading of sections of 1170, 1202.4, and
1202.44 of the Penal Code, keeping in mind the rule that, when scrutinizing the words of
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a statute, courts give the words their usual, ordinary, and commonsense meaning (People
v. Valladoli (1996) 13 Cal.4th 590, 597, 599). The Oxford English Dictionary defines the
word “conditional” as “Subject to, depending on, or limited by, one or more conditions;
not absolute; made or granted on certain terms or stipulations.”5 In the legal setting, the
meaning of the words of a statute must also be derived from the context in which the
words are used and with reference to the entire statutory scheme so that the whole may be
harmonized and retain effectiveness. (People v. Pieters (1991) 52 Cal.3d 894, 899.)
The relevant provision of section 1170 states that the trial court may commit a
defendant to county jail and suspend execution of a concluding portion of the applicable
term “ . . . during which time the defendant shall be supervised by the county probation
officer in accordance with the terms, conditions, and procedures generally applicable to
persons placed on probation, for the remaining unserved portion of the sentence imposed
by the court.” (§ 1170, subd. (h)(5)(B).) Terms and conditions generally applicable to
persons placed on probation or given “conditional sentences” include revocation
restitution fines. To wit: “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
5 That website can be found at http://www.oed.com/view/Entry/38552.
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probation or of a conditional sentence, and shall not be waived or reduced by the court,
absent compelling and extraordinary reasons stated on record.” (§ 1202.44, italics
added.)
Here, the probation-officer-supervised-release portion of defendant’s sentence was
dependent on his accepting and agreeing to terms and conditions that are virtually
identical to standard terms of probation. (§ 3454, subds. (a)-(s).) Defendant agreed to
those terms, and for the last four years of his nine-year sentence, he will have to abide by
them if he wishes to stay out of jail. (§ 3455, subds. (a) & (b).) Accordingly, pursuant to
section1202.44, defendant is subject to a revocation restitution fine in the same amount as
the mandatory fine imposed under section 1202.4, subdivision (b), $200. If he fails to
abide by those conditions, re-offends, and causes his (conditional) mandatory supervised
release to be revoked, the fine which is currently stayed will become effective.6 (§
1202.44.)
6 Although section 1202.45, subdivision (b), was not yet in effect at the time
defendant was sentenced, any confusion that may have existed as to the fines to which a
person on supervised release—conditioned upon abiding by terms and conditions
generally applicable to persons placed on probation—is subject, has been clarified by its
addition to the Penal Code. The language of the provision is virtually identical to that of
section 1202.44 except for the substitution of the words “postrelease community
supervision” or “mandatory supervision” for the word “probation” wherever it appears.
“In every case where a person is convicted of a crime and is subject to either postrelease
community supervision under Section 3451 or mandatory supervision under
subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, 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 or
mandatory supervision revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4 . . . .” (§ 1202.45, subd. (b).)
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In sum, defendant was given a sentence that included a conditional release
segment; under the language of section 1202.44, he is subject to a restitution revocation
fine should he fail to abide by the terms and conditions that underlie that conditional
release.
DISPOSITION
1) Defendant’s conviction for simple possession of cocaine base (Health & Saf.
Code § 11350, subd. (a)), is reversed. 2) The Abstract of Judgment is modified to reflect
that the $200 probation revocation fine imposed on October 26, 2010, is now due and
payable. 3) The order that defendant “Pay $200 for Probation Revocation Restitution
Fine” in the minute order of November 28, 2011, is corrected to read “Pay $200
Mandatory Supervision Revocation Restitution Fine.” 4) In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
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