People v. Waring CA2/2 ( 2014 )

Filed 1/22/14 P. v. Waring 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B247765
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA030739)
v.
DANNY RAY WARING,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
David B. Gelfound, Judge. Affirmed as modified.
Law Offices of James Koester and James Koester, 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, Scott A. Taryle, and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.
******
The only issue in this case is whether a parole revocation fine (Pen. Code,
§ 1202.45),1 which was imposed on appellant after the trial court sentenced him to life
without the possibility of parole, was unauthorized. For reasons that follow, we have
determined that it was. Accordingly, we strike the parole revocation fine and otherwise
affirm.
PROCEEDINGS BELOW2
In February 2002, in Los Angeles Superior Court case number PA032653,
appellant was convicted by jury of two counts of first degree murder (§ 187, subd. (a)),
and a firearm use enhancement (§ 12022.5, subd. (d)). The trial court sentenced appellant
to two consecutive terms of life without the possibility of parole for the murders, plus
25 years to life for the firearm enhancement. Appellant was also found to be in violation
of probation in Los Angeles Superior Court case number PA030739 and was sentenced to
an aggregate term of six years, six months. As to both cases, appellant was ordered to
pay a parole revocation fine pursuant to section 1202.45 and a restitution fine pursuant to
section 1202.4, subdivision (b).3
On December 4, 2003, this Court affirmed appellant’s convictions in case
number B157656. Appellant did not raise the issue of the legality of the parole
revocation fine at that time.
On February 26, 2013, appellant filed a pro. per. motion to strike or modify the
court ordered restitution, fees or fines that had been imposed in both case numbers
PA030739 and PA032653. On February 27, 2013, the motion was denied.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Given the nature of this appeal it is not necessary to set forth a detailed description
of the underlying facts of this case.
3 In case number PA030739, the trial court imposed a restitution fine in the amount
of $800, and a parole revocation fine of $800; in case number PA032653, the trial court
imposed a restitution fine in the amount of $10,000, and a parole revocation fine of
$10,000.
2
Appellant appeals from the trial court’s denial of his motion to strike or modify the
court ordered restitution fees imposed in case numbers PA030739 and PA032653.
DISCUSSION
The Parole Revocation Fine Must Be Stricken
The trial court imposed a $10,000 parole revocation fine in case
number PA032653, which was stayed pending successful completion of parole.4 The
People concede, and we agree, that because appellant was sentenced to life terms without
the possibility of parole, no parole revocation fine could be imposed. (People v. Petznick
(2003) 114 Cal. App. 4th 663, 687.) Unauthorized sentences are not subject to the rule of
forfeiture. (People v. Smith (2001) 24 Cal. 4th 849, 852.) Accordingly, that portion of the
court’s judgment imposing a parole revocation fine shall be stricken.
4 At the time of appellant’s sentencing in 2002, section 1202.45 provided: “In every
case where a person is convicted of a crime and whose sentence includes a period of
parole, the court shall at the time of imposing the restitution fine pursuant to
subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount
as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution
fine shall be suspended unless the person’s parole is revoked.”
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DISPOSITION
The judgment in case number PA032653 is modified as follows: The parole
revocation fine of $10,000 is stricken. The trial court is directed to amend the abstract of
judgment to reflect this modification and to forward certified copies of the amended
abstracts to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213,
1216.) The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
4