P. v. Moore CA2/2

Filed 4/2/13 P. v. Moore CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B236605

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA360190)
v.

KENNETH MOORE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert J. Higa, Judge. Affirmed as modified.

Gail Ganaja, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
 On October 4, 2011, the trial court found defendant Kenneth Moore in violation of
probation. On October 5, 2011, the trial court ordered executed an eight-year prison
sentence that had previously been imposed and suspended.
Defendant appeals on the grounds that: (1) the trial court erred in not sentencing
him under Penal Code section 1170, subdivision (h);1 and (2) the restitution fine and
parole revocation fine imposed on October 5, 2011, must be stricken because the court
had previously imposed these fines. Also, because defendant is not subject to parole
under section 3451, both parole revocation fines must be stricken.
FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2010, defendant Kenneth Moore pleaded “no contest” to one count
of selling cocaine in violation of Health and Safety Code section 11352, subdivision (a).
He admitted having suffered three prior prison terms within the meaning of section 667.5,
subdivision (b).
The trial court sentenced defendant to eight years in state prison. The sentence
consisted of five years in count 1, plus three consecutive one-year terms for the three
section 667.5, subdivision (b) enhancements. The trial court suspended execution of
sentence and placed defendant on probation for a period of five years.
Defendant was charged with the June 17, 2011 theft of several items from a Target
store. The trial court summarily revoked his probation on July 25, 2011. After a
contested revocation hearing, the trial court found defendant to be in violation of
probation, and defendant’s probation remained revoked.2 The trial court ordered that the
previously suspended sentence of eight years be in full force and effect.
Defense counsel argued that the trial court was required to sentence defendant to
county jail under the recently amended section 1170, subdivision (h). The prosecutor
contended that this section did not apply because defendant had already been sentenced

1 All further references to statutes are to the Penal Code unless stated otherwise.
2 The People subsequently moved to dismiss the theft case that resulted in
revocation of probation.

2
when placed on probation, and the trial court agreed. The trial court sentenced defendant
to prison for eight years and imposed a restitution fine of $250 and a parole revocation
fine of $250, which it stayed.
DISCUSSION
I. Application of Amended Section 1170, Subdivision (h)
A. Argument
Defendant contends that the trial court should have sentenced him to county jail
under section 1170, subdivision (h), since, at the time of his October 5, 2011 sentencing,
the offenses he committed were punishable by imprisonment pursuant to section 1170,
subdivision (h). Defendant did not fall under any of the exceptions that would have
required his sentence to be served in state prison. (§ 1170, subd. (h)(3).) Although an
eight-year prison term was imposed with a stay of execution on January 12, 2010, the
trial court’s actions at the October 5, 2011 hearing constituted a sentencing within the
meaning of section 1170, subdivision (h)(6).
B. Relevant Authority
“The Realignment Act ‘enacted sweeping changes to long-standing sentencing
laws,’ including replacing prison commitments with county jail commitments for certain
felonies and eligible defendants. Section 1170, subdivision (h)(6) specifies the Act will
be effective for all persons sentenced on or after October 1, 2011.” (People v. Clytus
(2012) 209 Cal.App.4th 1001, 1004, fn. omitted.) Section 1170, subdivision (h)(2)
provides that “a felony punishable pursuant to this subdivision shall be punishable by
imprisonment in a county jail for the term described in the underlying offense.” Health
and Safety Code section 11352, subdivision (a) provides that those who violate that
statute “shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of
the Penal Code for three, four, or five years.”
C. No Abuse of Discretion
In People v. Gipson (Feb. 28, 2013, B241551) ___ Cal.App.4th ___ [2013
Cal.App. LEXIS 152] (Gipson), this court noted that Division Eight of our district had
held that, for purposes of the Realignment Act, a defendant is sentenced on the date that a

3
trial court orders execution of a previously imposed but suspended sentence. (Gipson, at
p. ___ [at pp. *1-*2]; see People v. Clytus, supra, 209 Cal.App.4th at pp. 1004, 1009.)
We disagreed with Clytus, holding that “a defendant is sentenced on the date that
sentence is first announced and imposed even if execution of the sentence does not
happen until a later date.” (Gipson, at p. ___ [at p. *2].)
We observed in Gipson that section 1170, subdivision (h)(6) clearly applies the
Realignment Act to “‘any person sentenced on or after October 1, 2011,’” without
qualification. We concluded that the sentencing referred to in this provision plainly
meant the occasion when the trial court first announced and imposed the sentence as
opposed to the occasion when the sentence was executed. (Gipson, supra, ___
Cal.App.4th at p. ___ [at p. *9].) We declined to force additional meaning into the word
“sentenced” with the result that “sentenced” in reality would mean that the sentence was
both imposed and executed. (Ibid.)
We relied on People v. Chagolla (1984) 151 Cal.App.3d 1045 for the principle
that a trial court is without jurisdiction to modify or change the final judgment, and it is a
final judgment that occurs when a sentence is imposed and its execution suspended.
(Gipson, supra, ___ Cal.App.4th at p. ___ [at pp. *10-*11]; People v. Chagolla at p.
1049.) In the instant case, as in Gipson, we conclude that the trial court had jurisdiction
only to order the execution of the previously imposed prison sentence. (Gipson, supra,
___ Cal.App.4th at p. ___ [at p. *11].) Accordingly, defendant was sentenced on
January 12, 2010, and his sentence to state prison does not violate the Realignment Act.
Defendant argues alternatively that federal and state equal protection principles
require that he be sentenced pursuant to section 1170, subdivision (h). He maintains that
excluding felons whose sentences were imposed and stayed before October 1, 2011, but
ordered to be in full force and effect after that date, treats that individual differently from
individuals whose sentences were both imposed and executed after October 1, 2011, for
no reason related to the purpose of section 1170, subdivision (h). Because the purpose of
the Realignment Act is to improve public safety by realigning low-level offenders into a
system that facilitates their re-entry into society, there is no rational basis for the

4
disparate treatment. Defendant asserts that he is precisely the type of person that the
realignment policies intended to help reintegrate into society, with the end result of
increased public safety.
We reject defendant’s equal protection argument and agree with the court in
People v. Lynch (2012) 209 Cal.App.4th 353 (Lynch), which stated that, “[t]he right to
equal protection of the law generally does not prevent the state from setting a starting
point for a change in the law. ‘[T]he Fourteenth Amendment does not forbid statutes and
statutory changes to have a beginning and thus to discriminate between the rights of an
earlier and later time.’ [Citation.] The same rule applies to changes in sentencing law
that benefit defendants.” (Id. at p. 359.)
Lynch cited In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman), for the
proposition that the Legislature “‘properly may specify that [punishment-reducing]
statutes are prospective only, to assure that penal laws will maintain their desired
deterrent effect by carrying out the original prescribed punishment as written.’” (Lynch,
supra, 209 Cal.App.4th at p. 360; see also People v. Brown (2012) 54 Cal.4th 314, 328-
330 [no equal protection violation in prospective application of former § 4019, granting
increased conduct credits]; People v. Floyd (2003) 31 Cal.4th 179, 188-191 (Floyd) [no
equal protection violation in prospective application of Proposition 36, the Substance
Abuse and Crime Prevention Act of 2000].) The Lynch court went on to note that,
“[s]ince prospective application of the Realignment Act does not affect a fundamental
liberty interest and does not involve a suspect classification, it need only be reasonably
related to a rational state interest. That interest, preserving the criminal law’s deterrent
effect, was identified in Kapperman and reiterated by the Supreme Court in Floyd.”
(Lynch, supra, at pp. 360-361.)
Lynch observed that there is an additional justification for prospective application,
i.e., that “[t]he Legislature may experiment individually with various therapeutic
programs related to criminal charges or convictions,” and prospective application permits
the Legislature to control the risk of these experiments. (Lynch, supra, 209 Cal.App.4th
at p. 361.) “The Realignment Act is, if nothing else, a significant experiment by the

5
Legislature.” (Ibid.) The Legislature has a rational interest in limiting the potential costs
of the experiment, and prospective application is reasonably related to this goal. If the
experiment results in a worthwhile policy, the Legislature may then extend the
Realignment Act to all criminal defendants. (Ibid.)
Finally, like defendant here, the defendant in Lynch asserted that prospective
application did not further the stated purpose of the legislation. (Lynch, supra, 209
Cal.App.4th at pp. 361-362.) As stated in Lynch, the Legislature need not identify every
possible reason in support of a classification, and statutes that do not involve fundamental
rights or suspect classifications are presumed to be valid. (Id. at p. 362.) Defendant’s
arguments are without merit.
II. Fines
A. Defendant’s Argument
Defendant contends that the $250 fines imposed on October 5, 2011, must be
stricken, since the court had already imposed a $200 restitution fine and a $200 parole
revocation fine on January 12, 2010. He next argues that both parole revocation fines
must be stricken because he is no longer eligible for parole, but rather is subject to
community supervision under section 3451.
B. Additional Fines Must Be Stricken
Section 1202.4, subdivision (b) requires the trial court to impose a separate and
additional restitution fine in every case where a person is convicted of a crime, unless
there are extraordinary reasons for not doing so. (§ 1202.4, subd. (b).) However, “a trial
court has no statutory authority to order a second restitution fine upon revocation of
probation.” (People v. Arata (2004) 118 Cal.App.4th 195, 201-202; see People v.
Chambers (1998) 65 Cal.App.4th 819, 821-823 [trial court exceeded its statutory
authority when imposing a second restitution fine, which must be stricken].) A
restitution fine, imposed as a condition of probation, “survives the probationary term.”
(Arata, at p. 201.) The failure to object to the imposition of a second restitution fine does
not forfeit appellate review. (Chambers, at p. 823.) Accordingly, the $250 restitution
fine imposed on October 5, 2011, must be stricken.

6
 At the time of defendant’s 2010 sentencing, section 1202.45 provided that the
sentencing court had to impose a parole revocation restitution fine in addition to the
section 1202.4, subdivision (b) restitution fine in every case where a person was
convicted of a crime and the sentence included a period of parole. (Stats. 2007, ch. 302,
§ 15.) Both fines were to be in the same amount. Defendant’s sentence included a period
of parole of three years. As we have discussed, the original restitution fine in the amount
of $200 remained in effect following the revocation of defendant’s probation.
Accordingly, any additional fine under section 1202.45 cannot exceed $200. Because we
have concluded that defendant’s sentencing occurred in 2010, a parole revocation
restitution fine of $200 was properly imposed.
Section 3451 forms part of the Postrelease Community Supervision Act of 2011,
which was part of the Realignment Legislation. (§ 3450; Stats. 2011, ch. 15, §§ 1, 479.)
Section 3451 provides: “Notwithstanding any other law and except for persons serving a
prison term for any crime described in subdivision (b), all persons released from prison
on and after October 1, 2011, or, whose sentence has been deemed served pursuant to
Section 2900.5 after serving a prison term for a felony shall, upon release from prison
and for a period not exceeding three years immediately following release, be subject to
community supervision . . . .” (§ 3451, subd. (a).) Under this statute, it appears that
when defendant is released from prison, he will be subject to community supervision,
since none of the exceptions in subdivision (b) apply to him.
Section 1202.45, subdivision (b), currently 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
pursuant to subdivision (b) of Section 2085.5 by the board of supervisors of the county in
which the prisoner is incarcerated.” Parole revocation restitution fines and postrelease
community supervision fines are suspended unless the person’s parole or postrelease

7
community supervision is revoked. (§ 1202.45, subd. (c).) Therefore, even if the trial
court that executed defendant’s suspended sentence should have altered the judgment to
label the second fine as a postrelease community supervision fine, the fine would have
been in the same amount as the parole revocation restitution fine, and defendant suffered
no prejudice. Given that any such fine is suspended until such time as defendant’s
postrelease supervision is revoked, which may never occur, and given that the provisions
of the Realignment Act constitute a significant experiment (Lynch, supra, 209
Cal.App.4th at p. 361), we do not consider a remand for resentencing on that point to be a
prudent use of judicial resources.
DISPOSITION
The $250 restitution fine (§ 1202.4, subd. (b)) and the $250 parole revocation
restitution fine (§ 1202.45) imposed on October 5, 2011, are stricken. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

8