Filed 8/8/14 P. v. Le CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040151
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC802025)

         v.

HUY HOANG LE,

         Defendant and Appellant.


                                              I. INTRODUCTION
         Defendant Huy Hoang Le pleaded guilty to murder and admitted that he
personally used a handgun. (Pen. Code, §§ 187, 12022.5, subd. (a).)1 The trial court
sentenced him to 18 years to life in prison.
         On appeal, defendant contends that the clerk’s minutes of the sentencing hearing
and the abstract of judgment erroneously reflect that the trial court imposed a restitution
fine and a parole revocation restitution fine of $3,600 each. According to defendant, the
court “deferred” imposition of the restitution fines at the sentencing hearing and, because
no such fines were ultimately ordered by the court at a subsequently-held hearing, the
matter must be remanded for the trial court to exercise its discretion as to the amount of
the restitution fines or, alternatively, this court should impose the statutory minimum
amounts. Defendant also contends that, to the extent the trial court imposed such

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
restitution fines, his trial counsel rendered ineffective assistance by failing to argue for
lesser amounts.
       For reasons that we will explain, we will reverse the judgment and remand the
matter for the trial court to clarify whether and in what amount a restitution fine and a
parole revocation restitution fine are imposed. We also determine that the court failed to
impose the correct amount under section 1465.8, and we will order the amount increased
accordingly.
                  II. FACTUAL AND PROCEDURAL BACKGROUND
       On or about April 8, 2008, defendant and the victim argued and engaged in
shoving after they had earlier exchanged words about a female.2 As the victim walked
toward defendant, defendant shot the victim in the head. Defendant was arrested in
another country after attempting to flee to Vietnam.
       A. Information and Plea
       On March 11, 2013, defendant was charged by first amended information with
murder with the personal use of a handgun. (§§ 187, 12022.5, subd. (a).) Defendant
pleaded guilty to murder and admitted the personal use enhancement with the
understanding that he would receive 18 years to life. Prior to taking defendant’s plea, the
trial court advised defendant that he may be ordered to pay certain fines and fees,
including a mandatory restitution fine of up to $10,000.
       B. Sentencing
       On August 2, 2013, defendant was sentenced to 18 years to life. The issue of
victim restitution was continued to a future date. The trial court imposed a restitution
fine in the amount of $3,600 under the formula set forth in section 1202.4, former
subdivision (b)(2), and imposed but suspended an equal amount pursuant to


       2
         As defendant was convicted by plea, the facts underlying defendant’s offense are
taken from the probation report.

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section 1202.45. Upon the imposition of these amounts, the following exchange took
place between defense counsel and the court:
         “[DEFENSE COUNSEL]: Your Honor, is it possible to just stay all the issues of
restitution because I think after the restitution hearing we will see the amount and I’m
going to be asking the court to stay this.
         “THE COURT: The restitution fine?
         “[DEFENSE COUNSEL]: Yes.
         “THE COURT: Yes, we can defer.”
         The court then asked the probation department for a “response” on the issue. The
following exchange occurred between the probation department, defense counsel, and the
court:
         “[PROBATION DEPARTMENT]: The restitution fund fine is a mandatory fine.
It’s calculated on the amount of years and has nothing to do with victim restitution. You
have discretion to go from zero to $10,000; otherwise, it’s a mandatory fine.
         “[DEFENSE COUNSEL]: I would ask the court to stay that issue until we get
final restitution because I’ll be asking the court for less than restitution.
         “THE COURT: I see your point. If the restitution ends up being substantial, the
restitution fine would be . . . overkill so to speak.
         “[DEFENSE COUNSEL]: Yes.
         “THE COURT: Then the restitution fine and the additional fine is deferred until
[the restitution hearing date].”
         Later in the sentencing hearing, the trial court stated: “The amount of the
restitution to the victim’s family and the restitution fine which is currently scheduled at
$3600 are deferred to [the restitution hearing date].” Near the end of the sentencing
hearing, the court stated: “The matter’s continued to [the restitution hearing date]. For
the calculation of the exact amount of restitution to the victim’s family and consideration
for appropriate restitution fine . . . .”

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       The clerk’s minutes of the sentencing hearing indicate that a restitution fine of
$3,600 and a parole revocation restitution fine of $3,600 are “STAYED UNTIL” the
restitution hearing date. The abstract of judgment similarly indicates that those amounts
are “[s]tayed until” the restitution hearing date.
       C. Restitution Hearing
       The restitution hearing was held on September 6, 2013. The trial court ordered
defendant to pay the victim’s family more than $20,500 for the victim’s cemetery plot,
headstone, and memorial service. The court also made a general order of restitution with
respect to the hospital where the victim was admitted following the shooting. Neither the
parties nor the court addressed the issue of the restitution fine or the parole revocation
restitution fine.
                                      III. DISCUSSION
       A.      Restitution Fines
       On appeal, defendant contends that the clerk’s minutes of the sentencing hearing
and the abstract of judgment erroneously reflect that a restitution fine and a parole
revocation restitution fine of $3,600 each were imposed by the trial court and stayed until
the restitution hearing date. According to defendant, the court actually deferred
imposition of the fines and that, because no such fines were ultimately ordered by the
court, the matter must be remanded for the court to exercise its discretion as to the
amount of the fines, or this court should impose the statutory minimum. Defendant
further contends that, to the extent the trial court actually imposed two restitution fines,
trial counsel rendered ineffective assistance by failing to raise the issue of reduced
restitution fines at the restitution hearing.
       The Attorney General concedes that the clerk’s minutes and the abstract of
judgment erroneously reflect the imposition of restitution fines when the trial court
actually indicated that it would defer imposition of the fines until the restitution hearing.
Because the fines were not addressed at the restitution hearing, the Attorney General

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contends that remand is appropriate. The Attorney General further contends that it would
be “inappropriate” for this court to impose only the minimum fines because, in view of
the “severity” of defendant’s crime, “it is unlikely the [trial] court would have imposed
only the minimum fine, or imposed no fine at all.”
       Section 1202.4, subdivision (b) generally provides that a restitution fine must be
imposed “[i]n every case where a person is convicted of a crime.” (See also id., § 1202.4,
subd. (c); Stats. 2007, ch. 302, § 14.) “The restitution fine under section 1202.4 is
mandatory unless the sentencing court, in the words of the statute, ‘finds compelling and
extraordinary reasons for not doing so, and states those reasons on the record.’ (§ 1202.4,
subd. (b).) In cases in which the court imposes a restitution fine, imposition of a parole
revocation fine is also mandatory. (§ 1202.45.)” (People v. Tillman (2000) 22 Cal.4th
300, 302; see Stats. 2007, ch. 302, § 15; § 1202.45, subd. (a).)
       In this case, the record reflects that at the August 2013 sentencing hearing, the trial
court initially imposed a $3,600 restitution fine and a $3,600 parole revocation restitution
fine. At defendant’s request, however, the court stated that those fines were “deferred”
until the restitution hearing, where victim restitution would be calculated and the
“appropriate” amount of restitution fines would be given “consideration.” At the
subsequent September 2013 restitution hearing, neither the parties nor the court addressed
the issue of restitution fines. Further, it is not clear from the record whether the court
intended for defendant to pay the two $3,600 restitution fines in the absence of further
argument on the issue at the restitution hearing. Given the ambiguity in the record, and in
view of the parties’ agreement that remand is appropriate, we will remand the matter so
that the trial court may clarify whether and in what amount a restitution fine (§ 1202.4,
former subd. (b); Stats. 2007, ch. 302, § 14) and a parole revocation restitution fine
(former § 1202.45; Stats. 2007, ch. 302, § 15) are imposed.
       Regarding the imposition of a restitution fine on remand, we observe that, at the
time defendant committed his crime, former subdivision (b)(1) of section 1202.4

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provided that the restitution fine “shall be set at the discretion of the court and
commensurate with the seriousness of the offense, but shall not be less than two hundred
dollars ($200), and not more than ten thousand dollars ($10,000), if the person is
convicted of a felony . . . .” (Stats. 2007, ch. 302, § 14; see People v. Souza (2012) 54
Cal.4th 90, 143 [“the imposition of restitution fines constitutes punishment, and therefore
is subject to the proscriptions of the ex post facto clause”].) Further, former
subdivision (b)(2) provided that “the court may determine the amount of the fine as 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, former subd. (b)(2); Stats. 2007,
ch. 302, § 14.) In addition, former subdivisions (c) and (d) stated: “(c) The court shall
impose the restitution fine unless it finds compelling and extraordinary reasons for not
doing so, and states those reasons on the record. A defendant’s inability to pay shall not
be considered a compelling and extraordinary reason not to impose a restitution fine.
Inability to pay may be considered only in increasing the amount of the restitution fine in
excess of the two hundred-dollar ($200) . . . minimum. . . . [¶] (d) In setting the amount
of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) . . .
minimum, the court shall consider any relevant factors including, but not limited to, the
defendant’s inability to pay, the seriousness and gravity of the offense and the
circumstances of its commission, any economic gain derived by the defendant as a result
of the crime, the extent to which any other person suffered any losses as a result of the
crime, and the number of victims involved in the crime. Those losses may include
pecuniary losses to the victim or his or her dependents as well as intangible losses, such
as psychological harm caused by the crime. Consideration of a defendant’s inability to
pay may include his or her future earning capacity. A defendant shall bear the burden of
demonstrating his or her inability to pay. Express findings by the court as to the factors



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bearing on the amount of the fine shall not be required.” (§ 1202.4, former subds. (c) &
(d); Stats. 2007, ch. 302, § 14.)
       In view of our determination that the matter must be remanded on the issue of
restitution fines, we do not reach defendant’s claim of ineffective assistance of counsel.
       B.     Court Security Fee
       In view of the remand of this matter, we also observe that defendant was ordered
to pay an incorrect amount under section 1465.8. Relevant here, defendant committed
the murder in 2008 and was convicted in March 2013. The probation department
recommended that defendant pay a “Court Security Fee” of $30 pursuant to
section 1465.8. At the August 2, 2013 sentencing hearing, the trial court imposed the
$30 “court security fee.”
       However, since October 19, 2010, which is after defendant committed the murder
but before he was convicted, section 1465.8, subdivision (a) has provided that a court
security fee (now known as the court operations assessment) “of forty dollars ($40) shall
be imposed on every conviction for a criminal offense.” (See Stats. 2010, ch. 720, §§ 33,
40.) The $40 court security fee applies to all convictions after the operative date of the
statute. (See People v. Alford (2007) 42 Cal.4th 749, 752, 754, 759 [holding that the
court security fee is not a punitive fine subject to ex post facto restrictions, and that the
trial court properly imposed the fee where former section 1465.8 took effect after the
defendant committed his crime, but before he was convicted].) We will order the amount
imposed on defendant be increased to $40 pursuant to section 1465.8, subdivision (a).
                                    IV. DISPOSITION
       The judgment is reversed. On remand the trial court is directed to clarify whether
and in what amount a restitution fine (Pen. Code, § 1202.4, former subds. (b)-(d); Stats.
2007, ch. 302, § 14) and a parole revocation restitution fine (former Pen. Code,
§ 1202.45; Stats. 2007, ch. 302, § 15) are imposed. The trial court is also directed to



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increase to $40 the amount of the court security fee (Pen. Code, § 1465.8, subd. (a))
imposed on defendant.




                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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