P. v. Green CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD238807
- Trial judge
- Joan P. Weber
- Outcome
- modified — Affirmed as modified with directions.
- Area
- criminal
- Panel
- McINTYRE (author), Judith D. McConnell, Joan K. Irion
Analysis
The trial court sentenced the defendant to three years in prison and imposed a $1,440 restitution fine calculated based on two felony counts, including one for which the sentence was stayed under Penal Code section 654. The Court of Appeal affirmed the judgment as modified, reducing the restitution and parole revocation fines to $720 because the stayed count could not be included in the fine calculation.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Calculation of the restitution fine under Penal Code section 1202.4, subdivision (b) and the parole revocation fine under section 1202.45.“Because the sentence on count two was stayed pursuant to section 654, the fine must be reduced to $720.” | abuse of discretion | error (statutory interpretation) | agree with court agree with court |
Authorities
- relied: People v. Le (2006) 136 Cal.App.4th 925 — When a sentence on a count is stayed pursuant to section 654, that count cannot be part of the calculation for the restitution fine.
The appellate opinion: sound — The opinion correctly applies the holding in People v. Le to the specific statutory formula in section 1202.4, subdivision (b), which requires multiplying the base amount by the number of years and the number of felony counts. It properly excludes the stayed count from the 'number of felony counts' multiplier, resulting in a mathematically and legally correct reduction of the fine.
How this analysis was made · dispute it
unusual dispositionThe trial court convicted Green of pandering and pimping, stayed the pimping sentence under Penal Code section 654, and imposed a $1,440 restitution fine and matching parole revocation fine calculated using both counts. On appeal, with the People's concession, the Court of Appeal reduced both fines to $720 because the stayed count could not be used in the section 1202.4 formula, and otherwise affirmed the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Calculation of the section 1202.4, subdivision (b) restitution fine at $1,440 by including the count stayed under section 654 in the statutory formula.“When sentence on a count is stayed pursuant to section 654, that count cannot be a part of the calculation.” | unclear | error (law misapplied) | agree with court Section 654 bars multiple punishment for a single act, and a restitution fine is punishment; People v. Le holds that a count stayed under section 654 may not be used as a multiplier in the section 1202.4 formula. The court applied Le correctly and the People conceded the error, so the reduction to $720 ($240 x 3 years x 1 count) follows directly from the statute. |
Imposition of a $1,440 parole revocation fine under section 1202.45.“The parole revocation fine, which must be in the same amount as the restitution fine (§ 1202.45), must also be reduced to $720.” | unclear | error (law misapplied) | agree with court Section 1202.45 requires the parole revocation fine to equal the restitution fine, so once the restitution fine was reduced the parole revocation fine had to be reduced to match; this is a mechanical application of the statute. |
Ineffective assistance of counsel claim based on trial counsel's failure to object to the amount of the restitution fine.“We need not discuss Green's contention that trial counsel was ineffective in failing to object to the amount of the restitution fine.” | unclear | not reached | agree with court Because the court granted the relief sought on the merits, the alternative ineffective assistance argument was moot; declining to reach it was proper. |
Authorities
- relied: People v. Le (2006) 136 Cal.App.4th 925 — A count on which sentence is stayed under section 654 may not be included in the section 1202.4, subdivision (b) formula for calculating the restitution fine.
The appellate opinion: sound — The opinion correctly applies section 1202.4, subdivision (b), section 1202.45, and People v. Le to a conceded sentencing error and orders the appropriate modification. It does not state a standard of review or discuss forfeiture, but given the People's concession and the purely legal nature of the error those omissions do not affect the result.
Opinion
Filed 7/1/13 P. v. Green CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062646
Plaintiff and Respondent, v. (Super. Ct. No. SCD238807)
GLEN GREEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed as modified with directions.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent. In August 2012, a jury found Glen Green guilty of pandering (Pen. Code, § 266i, subd. (a)(2); count 1; all further statutory references are to the Penal Code) and pimping (§ 266h, subd. (a); count 2). In September, the court sentenced him to three years in prison: the three-year lower term for pandering and a stayed (§ 654) three-year lower concurrent term for pimping. Green appeals, contending the court abused its discretion and violated section 654's proscription against multiple punishment by relying on count two in calculating the amount of the restitution fine. The People properly concede the point.
In 2012, section 1202.4, subdivision (b) allows the court to calculate the amount of the restitution fine by multiplying $240 "by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b)(2) & (1).) When sentence on a count is stayed pursuant to section 654, that count cannot be a part of the calculation. (People v. Le (2006) 136 Cal.App.4th 925, 933-934.) Here, the court imposed a $1,440 restitution fine, calculated as $240 times three (years) times two (counts). Because the sentence on count two was stayed pursuant to section 654, the fine must be reduced to $720. The parole revocation fine, which must be in the same amount as the restitution fine (§ 1202.45), must also be reduced to $720. We need not discuss Green's contention that trial counsel was ineffective in failing to object to the amount of the restitution fine.
DISPOSITION
The $1,440 restitution fine (§ 1202.4, subd. (b)) and the $1,440 parole revocation fine (§ 1202.45) are each reduced to $720. As so modified, the judgment is affirmed.
2 The trial court is directed to prepare an amended abstract of judgment reflecting the modification and forward it to the Department of Corrections and Rehabilitation.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.
Cites, in this corpus
- People v. Tuyen Thanh Le H028821 · 2006-02-10