P. v. Lewis

 

 

 

 

 

 

 

 

 

 

 

Filed 9/6/13  P. v. Lewis CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Colusa)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ALISA ANN LEWIS,                           Defendant and Appellant.

C071995   (Super. Ct. No. CR53964)

 

 

 

 

 

This case comes to us pursuant to >People v.
Wende (1979) 25 Cal.3d 436 (Wende).  Having reviewed the record as required by >Wende, we affirm the judgment. 

            We provide
the following brief description of the facts and procedural history of the
case.  (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

>FACTUAL
AND PROCEDURAL BACKGROUND

            On April 23,
2012,
defendant entered a pharmacy and presented two prescriptions to the pharmacist
-- one for oxycodone and the other for Norco. 
The pharmacist became suspicious since both medications were narcotics
and he did not recognize defendant.  The
pharmacist told defendant he did not have the medications on hand and to return
in two days to pick them up.  He then
called the physician listed on the prescription, who informed him that she did
not have a patient by defendant’s name and had not issued the
prescriptions.  Defendant was arrested
when she returned to pick up the medications. 


            Defendant was charged with href="http://www.fearnotlaw.com/">second degree burglary (Pen. Code, § 459) and forging or altering a prescription (Health &
Saf. Code, § 11368).  On August 15, 2012, defendant pleaded guilty to second
degree burglary with the agreement that the remainder of the charges would be
dismissed with a Harvey waiver.href="#_ftn1" name="_ftnref1" title="">[1] 


            On August 29,
2012, the
trial court denied defendant probation and sentenced her to the midterm of
two years, to be served locally pursuant to Penal Code section 1170,
subdivision (h).  The trial court ordered
defendant to pay a $400 restitution fine (Pen. Code, § 1202.4), a suspended $400 mandatory supervision restitution fine
(id., § 1202.45,
subd. (b)), a $40 court security fee (id.,
§ 1465.8), and a $30 court facilities
assessment (Gov. Code, § 70373).  Defendant was awarded 59 actual days’
credit and 58 conduct days’ credit, for a total of 117 days of
presentence custody credit.  (Pen. Code,
§ 4019.) 

            Defendant appeals.  She did not obtain a href="http://www.mcmillanlaw.com/">certificate of probable cause.  (Pen. Code, § 1237.5.) 

>DISCUSSION

            We
appointed counsel to represent defendant on appeal.  Counsel filed an opening brief that sets
forth the facts of the case and requests this court to review the record and
determine whether there are any arguable
issues on appeal.  (>Wende, supra, 25 Cal.3d 436.) 
Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.  More than 30 days have elapsed, and we have
received no communication from defendant. 


            We find one error that requires
correction -- that is, the trial court’s imposition of a suspended $400
postrelease supervision revocation fine must be stricken.  At the time of defendant’s sentencing on
August 29, 2012, Penal Code section 1202.45 provided for a mandatory
parole revocation fine in an amount equal to the restitution fine in every case
where a prison term includes a period of parole.  (Stats. 2007, ch. 302, § 15; People v. Tillman
(2000) 22 Cal.4th 300, 302.)  Here,
however, defendant’s sentence was to be served in county jail pursuant to Penal
Code section 1170, subdivision (h). 
Since parole is not included in sentences imposed under this statutory
scheme (Pen. Code, § 3000, subd. (a)(1) [parole applies to “sentence
resulting in imprisonment in the state prison”]), the parole revocation fine
did not apply.  Section 1202.45 was
amended to provide for a mandatory supervision restitution fine (§ 1202.45, subd. (b));href="#_ftn2" name="_ftnref2" title="">[2] however, that provision did not
become effective until January 1, 2013. 
(Cal. Const., art. IV, § 8, subd. (c) [absent urgency
legislation, statutory amendments enacted at regular session not effective
until January 1 next following 90-day period from date of enactment].)  Accordingly, we strike the $400 mandatory
supervision restitution fine.  (People v.
Smith (2001) 24 Cal.4th 849, 852-854 [unauthorized sentence may be
corrected at any time].)

            Having undertaken an examination of
the entire record, we find no other arguable error that would result in a
disposition more favorable to defendant.

>DISPOSITION

            The
judgment is modified to strike the $400
mandatory supervision restitution fine. 
As modified, the judgment is affirmed. 
The trial court is directed to prepare an amended abstract of judgment
reflecting this modification and to forward a certified copy thereof to the
appropriate authorities.

 

 

 

                                                                                                         MURRAY                        , J.

 

 

 

We concur:

 

 

 

                     BLEASE                       , Acting P. J.

 

 

 

                   DUARTE                        , J.