McHenry

Defendant, Royal Porter McHenry, appeals after a jury trial from a petty theft with a prior conviction. (Pen. Code, § 666.) The jury found defendant had served a prior separate prison term within the meaning of section 667.5, subdivision (b). Defendant was sentenced to four years in state prison. The court imposed: a $5,000 restitution fine pursuant to section 1202.4; a $5,000 suspended restitution fine under section 1202.45; and a penalty assessment in the amount of $5,000 pursuant to section 1464. Defendant received presentence custody credit for 202 days of actual custody, and 101 days of conduct credit, for a total of 303 days. In the published portion of the opinion, we address the propriety of the $5,000 penalty assessment that was imposed.

Defendant argues that it was improper for the trial court to have imposed a $5,000 penalty assessment on the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. We agree. This is an issue of statutory interpretation. We apply the following standard of statutory review described by the California Supreme Court: “When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In…