Opinion
H032903
4-24-2009
THE PEOPLE, Plaintiff and Respondent, v. PHANH LE, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Phanh Le appeals from a judgment of conviction entered after he pleaded no contest to two counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)) and six counts of forgery (§ 470, subd. (d)). Defendant also admitted the allegations that he had one prior felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12) and served three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to seven years in prison. The trial court also imposed a restitution fund fine in the amount of $10,000 (§ 1202.4) and a $10,000 parole revocation fine, suspended (§ 1202.45).
All further statutory references are to the Penal Code.
The seven-year term was composed of a 16-month term on count one, doubled to two years and eight months because of the strike conviction, plus a consecutive 16-month term on count seven, and one-year terms for each of the three prior prison term enhancements. The trial court stayed punishment pursuant to section 654 on counts two through six, and count eight.
On appeal, defendant challenges the amount of the restitution fund and parole revocation fines. We conclude that the trial court erred in using the six counts for which punishment was stayed under section 654 in calculating the amount of the fines under the formula of section 1202.4, and, assuming an objection was required, defense counsel was prejudicially deficient in failing to object. Since the trial court intended to use the formula, we modify the restitution fund and parole revocation fines to the amounts that would have been produced under the formula. As modified, the judgment is affirmed.
I. Statement of Facts
Defendant cashed five fraudulent money orders at the Thien Truc Market on two separate occasions in November 2006. The total amount of the money orders was $4,650.15. That same month, defendant asked his supervisor at work to cash a money order for him. The supervisor deposited the money order for $950 into his account and withdrew $600, which he gave to defendant. The following day, defendant asked his supervisor for the remainder of his money. The supervisor then withdrew $350 and gave it to defendant. The money order was later determined to be counterfeit. Defendant promised to pay his supervisor, but did not do so.
II. Discussion
When a defendant is convicted of a felony, section 1202.4 requires the imposition of a restitution fund fine of not less than $200 nor more than $10,000, and section 1202.45 requires the imposition of a matching parole revocation fine. (§§ 1202.4, subd. (b)(1), 1202.45.) Section 1202.4 provides that the amount of the fine "shall be set at the discretion of the court and commensurate with the seriousness of the offense" and provides a formula that the court "may" use to "determine the amount of the fine." (§ 1202.4, subd. (b).) This formula sets the fine at "the product of two hundred dollars ($200) multiplied 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).)
Here, defendant was convicted of eight felony counts and sentenced to seven years in prison. Employment of the formula results in the maximum fine of $10,000 ($200 x 7 years x 8 counts = $11,200) only if all eight felony counts are properly used under the formula.
Defendant contends that the trial court erred in including the counts that it had stayed pursuant to section 654 when it calculated the two fines pursuant to the formula in section 1202.4. He also contends that defense counsel rendered ineffective assistance in failing to object to this error. The People argue that the trial court did not err because the use of the formula is discretionary, and the court could depart from it and impose a $10,000 restitution fund fine.
The record does not support the Peoples argument. Instead, it establishes that the trial court intended to calculate the fine under the formula. The probation officer initially recommended a sentence of five years and eight months, and a restitution fund fine of $8,000 ($200 x 5 years (rounding down) x 8 counts) "under the formula permitted by Penal Code Section 1202.4(b)." The probation officer then submitted a supplemental probation report that recommended a sentence of seven years without recalculating the amount of the fine. At the sentencing hearing, the trial court noted that it had read both probation reports. The trial court stated that it was imposing a restitution fine of $8,000 "under the formula permitted under Penal Code Section 1202.4(b)." The probation officer later pointed out that "the $8,000 restitution fine figure that was given on our original presentence report was based on our original recommendation of five years. With the seven years the Court imposed, it would exceed the formula so we would be asking that it be the $10,000 figure. [¶] THE COURT: Yes. Thank you for pointing that out. And so just to clarify, the 8,000 was on the original erroneous calculation of the time in prison. So just by clarification, the Court will impose a restitution fine of $10,000 pursuant to 1202.4(b), and an additional restitution fine equal in that amount, $10,000 under that section, and thats suspended pursuant to 1202.45 of the Penal Code." Thus, while the trial court had discretion to choose not to employ the formula under section 1202.4, it chose to rely on the formula.
"Ordinarily, a section 654 claim is not waived by failing to object below. `[T]he waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. [Citation.] This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (People v. Hester (2000) 22 Cal.4th 290, 295.)
Here, defense counsel did not object to the amount of the restitution fund and parole revocation fines at the sentencing hearing. However, we need not resolve the issue of whether a section 654 objection was required, because, assuming that an objection was required, defense counsel was prejudicially deficient in failing to make such an objection. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687.)
When the trial court uses the statutory formula under section 1202.4, section 654 compels the court to disregard counts for which punishment has been stayed. (People v. Le (2006) 136 Cal.App.4th 925, 933-934 (Le).) In Le, this court reasoned: "First, the California Supreme Court has determined that `the Legislature intended restitution fines as punishment. [Citation.] Thus, a restitution fine calculated under the formula provided by section 1202.4, subdivision (b)(2), constitutes a criminal penalty, not a civil remedy. Second, our Supreme Court has established the general rule that section 654 `prohibits the use of a conviction for any punitive purpose if the sentence on that conviction is stayed. [Citation.] [¶] Third, there is no explicit language in section 1202.4, subdivision (b)(2), to suggest that the Legislature intended to except restitution fines from the section 654 ban on multiple punishments." (Le, at p. 933.)
The People argue, however, that Le should be reconsidered, noting that "stayed counts can be used properly to determine a penal effect when that is the legislative intent." They argue that "[s]ubdivision (b) as fleshed out by subsection (a)(3) [of section 1202.4] contains precisely the type of language that courts have found to act as an exemption from section 654." We disagree.
The Le court recognized that "[w]hile the California Supreme Court ruled in People v. Benson (1998) 18 Cal.4th 24 that a statute may create an exception to section 654 without expressly referring to section 654, the statutes that have been construed to override section 654 have included language expressly authorizing multiple punishments. (People v. Benson, supra, 18 Cal.4th at p. 31-33.)" (Le, supra, 136 Cal.App.4th at p. 933.) In People v. Benson (1998) 18 Cal.4th 24 (Benson), the court interpreted section 1170.12, subdivision (b), which stated in relevant part: "`Notwithstanding any other provision of law . . . a prior conviction of a felony shall be defined as: [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state . . . . None of the following dispositions shall affect the determination that a prior conviction is a prior felony . . .: for purposes of this section: [¶] . . . [¶] (B) The stay of execution of sentence. (Italics added.)" (Benson, at p. 28.) Thus, the court held that the Three Strikes recidivism enhancement provisions were exempt from section 654, that is, even if the trial court stayed sentence, a strike results from a prior serious or violent felony conviction. (Benson, at pp. 26-27.)
As the People point out, the Le court noted cases analyzed by the Supreme Court in Benson. (Le, supra, 136 Cal.App.4th at p. 934.) These cases provided additional examples of statutes that were interpreted as expressly authorizing multiple punishments. (People v. Hicks (1993) 6 Cal.4th 784 (Hicks); People v. Ramirez (1995) 33 Cal.App.4th 559 (Ramirez); People v. Powell (1991) 230 Cal.App.3d 438 (Powell).)
In Hicks, the issue was "whether the Legislature, by enacting section 667.6(c), which authorizes consecutive full-term sentences for enumerated sexual offenses `whether or not the crimes were committed during a single transaction, created an exception to section 654s prohibition against multiple punishment for separate acts committed during an indivisible course of conduct." (Hicks, supra, 6 Cal.4th 784 at p. 791.) The court reasoned that since "the words `single and `indivisible have nearly identical meanings . . . the only reasonable interpretation of section 667.6(c) is that it permits imposition of consecutive full-term sentences, notwithstanding the provisions of section 654, when the defendant is convicted of an offense enumerated in section 667.6(c), based upon the commission of a separate act that constituted part of an indivisible course of conduct." (Hicks, at p. 792.)
In Ramirez, the court interpreted section 667, which authorized doubling of the sentence for a new felony offense "`in addition to any other enhancement or punishment provisions which may apply." (Ramirez, supra, 33 Cal.App.4th at p. 566, italics omitted.) Thus, the court held that a single felony conviction could be used to double the term and impose a five-year enhancement. (Ramirez, at p. 573.)
In Powell, the trial court used the same prior conviction to impose a section 667.5 enhancement and a section 11370.2 enhancement. (Powell, supra, 230 Cal.App.3d at p. 440.) The appellate court affirmed, because the statute stated that "`[a]ny person convicted of a violation of . . . Section . . . 11351.5 . . . shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of . . . Section . . . 11352, . . . whether or not the prior conviction resulted in a term of imprisonment. (Italics added.)" (Powell, at p. 441.)
We now consider the language of section 1202.4. Subdivision (a)(3) of that section provides: "The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: [¶] (A) A restitution fine in accordance with subdivision (b)." (Italics added.) However, unlike the language at issue in Benson, Hicks, Ramirez, and Powell, this language does not "expressly authoriz[e] multiple punishments" in violation of section 654. (Le, supra, 136 Cal.App.4th at p. 933.) Instead, the reference to "any other penalty" authorizes the imposition of other fines or penalties. (See, e.g. Pen. Code, § 1202.5.) Accordingly, we cannot conclude that section 1202.4 indicates a legislative intent to except restitution fines from the ban on multiple punishments under section 654.
Here, if trial counsel had objected to the erroneous use of the stayed counts, the trial court undoubtedly would have calculated the restitution fund fine under the formula without the use of the stayed counts. This calculation would have produced $2,800 fines rather than $10,000 fines. Since defendant was prejudiced by the imposition of the higher fines, we will modify the judgment.
III. Disposition
The judgment is modified to reduce the restitution fund fine to $2,800 and the parole revocation fine to $2,800. As modified, the judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P. J.
Duffy, J.