P. v. Navarro
Filed 6/11/13 P. v. Navarro CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
>
THE PEOPLE, Plaintiff and Respondent, v. ANDY REUBEN NAVARRO, Defendant and Appellant. | A136130 (Lake County Super. Ct. No. CR929471) |
Defendant
Andy Reuben Navarro timely appealed from a judgment entered on his plea. Because the trial court imposed a
parole-revocation fine even though Navarro is not subject to parole, we order
that the fine be stricken. We also order
that the abstract of judgment be amended to reflect the crime for which Navarro
was convicted. We otherwise affirm.
I.
Factual and Procedural
Background
Police arrested Navarro after his
girlfriend reported that he kicked her in the face and threatened her with a
knife in April 2012. Navarro was charged
by complaint with various crimes. Under
a plea agreement, he pleaded no contest to one count of assault by force likely
to produce great bodily injury
(former Pen. Code, § 245, subd. (a)(1),
now § 245,
subd. (a)(4)), and the balance of the complaint against him was
dismissed. The trial court sentenced him
on June 26, 2012, to
three years in prison, the maximum term contemplated by his
Without objection, the trial
court also imposed various fines and fees, including a $720 parole-revocation
restitution fine under section 1202.45, which was to be “stayed unless
[Navarro’s] parole is revoked.†After
addressing credits that Navarro would receive against his sentence, a
question arose over whether Navarro’s sentence would include a parole
period. The trial court concluded that
because assault by means of force likely to produce great bodily injury did not
qualify as a serious felony (§ 1192.7, subd. (c)(1);
146, 148, 151), Navarro would not be released on parole. Instead, the trial court stated that “this would be a community
supervision type of case,†an apparent reference to the 2011 Realignment
Legislation (Realignment Act).
(Stats. 2011, ch. 15, § 1; e.g., §§ 17.5,
3451.) Although the court informed
defendant that “it’s not going to be a release on parole,†it did not revisit
the parole fine it previously had imposed.
Navarro
timely appealed, and his counsel asked this court for an independent review of
the record to determine whether there were any
v. Wende (1979) 25 Cal.3d 436.) We
asked the parties to brief whether the trial court was authorized to impose a
restitution fine under section 1202.45 at the time of sentencing, even
though Navarro’s term did not include a parole period. (People v. Scott
(1994) 9 Cal.4th 331, 354 [sentencing error not waived even in the absence
of objection where sentence is unauthorized].)
The parties agree that the trial court erred in imposing the
fine.
II.
Discussion
Navarro
Not Subject to Parole Fine.
At the time of sentencing,
section 1202.45 required trial courts to impose a restitution fine in every case where
a defendant’s sentence included a parole period, but to suspend the fine unless
parole was revoked. (Stats. 2007,
ch. 302, § 15.) Under the
Realignment Act, felons who have been convicted of certain crimes shall be
sentenced to prison, to be followed by postrelease community supervision
instead of parole. (§§ 1170,
subd. (h)(1) [defendant eligible for county jail where prison term not
specified in underlying statute], 245, subd. (a)(4) [assault by force
likely to cause great bodily harm punishable by imprisonment in state prison],
3451 [persons released from prison subject to postrelease community supervision
except when convicted of certain crimes not applicable here].) Where a defendant’s sentence under the
Realignment Act is not subject to a parole period, the defendant is not subject
to a parole-revocation restitution fine under section 1202.45. (People
v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 6 [sentencing under
Realignment Act]; see also People v.
DeFrance (2008) 167 Cal.App.4th 486, 505 [parole-revocation fine
inapplicable where defendant sentenced to life without possibility of parole,
because no possibility of defendant being released on parole].)
Section 1202.45
was amended after Navarro was sentenced to authorize trial courts to impose
fines against defendants, like him, who are subject to postrelease community
supervision instead of parole.
(§ 1202.45, subd. (b); Stats. 2012, ch. 762,
§ 1.) As respondent concedes,
Navarro was not subject to such a fine because the amendment did not take
effect until after he was sentenced. We
therefore order the trial court to strike the fine imposed under former
section 1202.45.
Correction
to Abstract of Judgment.
In
reviewing the record, we discovered an unraised clerical error. (People v. Mitchell (2001) 26 Cal.4th 181,
186-188.) The probation report
mistakenly stated that Navarro was convicted of assault with a deadly
weapon. (Former § 245,
subd. (a)(1).) His trial counsel
noted the error during the sentencing hearing, and the trial court repeatedly
confirmed that Navarro had in fact been convicted of assault by means of force
likely to produce great bodily injury.
The abstract of judgment, however, wrongly indicates that Navarro was
convicted of “ASSAULT: DEADLY WEAPON.†We order the abstract of judgment to be
corrected to describe Navarro’s conviction as being for assault by means of
force likely to produce great bodily
III.
Disposition
The trial court is
ordered to strike the $720 parole-revocation restitution fine imposed under
former section 1202.45.
Additionally, the abstract of judgment shall be modified to describe
Navarro’s conviction as being for assault by means of force likely to produce great bodily injury, and
not assault with a deadly weapon.
The trial court is directed to prepare an amended abstract of
judgment. The judgment is otherwise
affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
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All statutory references are to the Penal Code.
