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P. v. Anderson

P. v. Anderson
02:08:2009



P. v. Anderson



Filed 12/19/08 P. v. Anderson CA6



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT



THE PEOPLE,



Plaintiff and Respondent,



v.



ANTHONY JAMES ANDERSON,



Defendant and Appellant.



H032954



(Santa Clara County



Super. Ct. No. EE705820)



A jury convicted defendant of driving under the influence of alcohol (count 1) (DUI) and driving with a blood-alcohol level of .08 percent (count 2), both felonies. (Veh. Code, 23152, subd. (a); 23152. subd. (b); 23550.5, subd. (a).) In a bifurcated proceeding, the court found true that defendant had suffered prior DUI convictions within the meaning of Vehicle Code section 23550.5, subdivision (a). The court sentenced defendant to concurrent two-year prison terms. The court imposed an $800 restitution fund fine, and suspended a parole revocation fine in the same amount, on each count. On appeal, defendant contends that the trial court erred in imposing concurrent terms. He also contends the court erred in imposing a restitution fund fine (and corresponding parole revocation fine) based on a statutory formula that calculates the fine with reference to a count that should have been stayed. The Attorney General concedes that the court erred in imposing concurrent terms, and takes no position on the restitution fine issue. We will modify the judgment to reflect that count 2 is stayed pursuant to Penal Code section 654, and reduce the fines to $400 each. As modified, the judgment will be affirmed, and the trial court will be directed to forward the corrected Abstract of Judgment to the Department of Corrections.



STATEMENT OF FACTS



Inasmuch as the Attorney General concedes that the jury convicted defendant of both counts based on a single act of driving, we need not summarize the historical facts in order to resolve the legal issue.



DISCUSSION



Penal Code section 654 provides in relevant part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citation.] It is the defendants intent and objective that determines whether the course of conduct is indivisible. [Citation.] Thus, [i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. (People v. Le (2006) 136 Cal.App.4th 925, 931 (Le).)



Here, the Attorney General concedes, and we agree, that Penal Code section 654 bars imposition of concurrent terms for driving under the influence of alcohol and driving with a blood-alcohol level of .08 percent arising out of one act of driving. (People v. Martinez (2007) 156 Cal.App.4th 851, 857.) Therefore, we will modify the judgment to reflect that the sentence on count 2, driving with a blood alcohol level of .08 percent, is stayed pursuant to section 654.



In Le, this court held that because a restitution fund fine and its corresponding suspended parole revocation fine constitute punishment, they cannot be imposed in violation of Penal Code section 654, and that section 654 is violated if the court calculates the restitution fund and parole revocation fines under the formula provided by Penal Code section 1202.4, subdivision (b)(2), using a conviction for which sentence must be stayed pursuant to section 654. (Le, supra, 136 Cal.App.4th at p. 934.) In Le, the trial court explicitly stated that its calculation was based on the statutory formula. (Id. at p. 933.) Here, the trial court did not explain how it arrived at a restitution fund fine and a corresponding suspended parole revocation fine in the amounts of $800. (Pen. Code, 1202.4, 1202.45.) However, we note that the probation report recommended a restitution fund fine of $800 under the formula permitted by Penal Code section 1202.4. That statutory formula provides: In setting a felony restitution fine, 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. (Pen. Code, 1202.4, subd. (b)(2).) Here, as in Le, application of the statutory formula results in the fine imposed: the product of $200 multiplied by defendants sentence of two years multiplied by defendants two felony convictions, is $800. In addition, we note that the court imposed a court security fee of $20 per count. Under these circumstances, the record strongly supports the inference that the trial court employed the statutory formula to arrive at a restitution fund fine, and a corresponding suspended parole revocation fine, of $800 each, and the record is not reasonably susceptible of any other explanation. Therefore, we will also reduce the restitution fund fine and the corresponding suspended parole revocation fine to $400 each.



DISPOSITION



The judgment is ordered modified to reflect that the sentence on count 2, driving with a blood-alcohol level of .08 percent, is stayed pursuant to Penal Code section 654. The judgment is also modified to reduce the restitution fine from $800 to $400, and the suspended parole revocation fine from $800 to $400. As so modified, the judgment is affirmed. The superior court is directed to send a certified copy of the corrected abstract of judgment to the Department of Corrections.



____________________________________________



McAdams, J.



WE CONCUR:



________________________________



Bamattre-Manoukian, Acting P.J.



________________________________



Duffy, J.



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Description A jury convicted defendant of driving under the influence of alcohol (count 1) (DUI) and driving with a blood-alcohol level of .08 percent (count 2), both felonies. (Veh. Code, 23152, subd. (a); 23152. subd. (b); 23550.5, subd. (a).) In a bifurcated proceeding, the court found true that defendant had suffered prior DUI convictions within the meaning of Vehicle Code section 23550.5, subdivision (a). The court sentenced defendant to concurrent two-year prison terms. The court imposed an $800 restitution fund fine, and suspended a parole revocation fine in the same amount, on each count. On appeal, defendant contends that the trial court erred in imposing concurrent terms. He also contends the court erred in imposing a restitution fund fine (and corresponding parole revocation fine) based on a statutory formula that calculates the fine with reference to a count that should have been stayed. The Attorney General concedes that the court erred in imposing concurrent terms, and takes no position on the restitution fine issue. Court modify the judgment to reflect that count 2 is stayed pursuant to Penal Code section 654, and reduce the fines to $400 each. As modified, the judgment will be affirmed, and the trial court will be directed to forward the corrected Abstract of Judgment to the Department of Corrections.

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