Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 82422. Hurl W. Johnson III, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
Before Harris, Acting P.J., Levy, J., Gomes, J.
OPINION
In January 1991, a jury convicted appellant, Jesus Cianez Hernandez, of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and conspiracy to commit first degree murder (§§ 182, subd. (a), 187, subd. (a), 189), and found true allegations that the murder was carried out for financial gain (§ 190.2, subd. (a)(1)), a special circumstance, and that in committing the murder appellant, personally used two different firearms (§ 12022.5). In March 1991, the trial court imposed the death penalty.
All further statutory references are to the Penal Code, unless otherwise indicated.
In June 2003, the California Supreme Court reversed the judgment of death and vacated the special circumstance as to the conspiracy count. In August 2006, the trial court imposed sentence as follows: life in prison without possibility of parole on the murder conviction, 25 years to life on the conspiracy conviction, and three years on each of the firearm-use enhancements. The court stayed execution of sentence on the conspiracy count and the enhancements, and imposed two fines of $200 each, pursuant to sections 1202.4 and 1202.45, respectively. The court suspended the section 1202.45 fine pending successful completion of parole.
On appeal, appellant contends, and the People concede, the court erred in imposing the section 1202.45 fine. We agree.
DISCUSSION
Section 1202.45 mandates the imposition of a “parole revocation restitution fine” “[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.” Notwithstanding that appellant could conceivably become eligible for parole on his 25-years-to-life sentence on the conspiracy count, because the term imposed on appellant’s murder conviction does not allow for parole, his “sentence” does not “include[] a period of parole,” within the meaning of section 1202.45. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182.) Therefore, the court erred in imposing the section 1202.45 fine.
DISPOSITION
The $200 fine imposed under section 1202.45 is stricken. The trial court is directed to prepare an amended abstract of judgment that contains no reference to a section 1202.45 fine. As modified, the judgment is affirmed.