P. v. Corona

Filed 3/2/06 P. v. Corona CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H028884

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC472632)

SALVADOR CORONA,

Defendant and Appellant.

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Defendant challenges the trial court's use of two counts for which punishment was stayed under Penal Code section 654 in its calculation of the restitution fund fine under the formula set forth in Penal Code section 1202.4, subdivision (b)(2). He also claims that his trial counsel was prejudicially deficient in failing to object to the trial court's error. We conclude that the trial court's use of these two counts in its calculation under the formula was a violation of Penal Code section 654, and, assuming an objection was required, defendant's trial counsel was prejudicially deficient in failing to object. We modify the restitution fund fine and the matching parole revocation fine to the amounts that would have been produced by a proper calculation under the formula since the trial court explicitly intended to follow the formula.

I. Background

Defendant pleaded no contest to possession of cocaine for sale (Health & Saf. Code, § 11351), transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and misdemeanor being under the influence of cocaine and methamphetamine (Health & Saf. Code, § 11550, subd. (a)). There was no plea agreement.

The probation department recommended a three-year prison term and $2400 restitution fund and parole revocation fines calculated pursuant to Penal Code section 1202.4. The court imposed the three-year lower term for the cocaine transportation count and a concurrent term for the methamphetamine transportation count and stayed imposition of sentence for the two possession counts pursuant to Penal Code section 654. A concurrent jail term was imposed for the misdemeanor count. The court imposed a $2400 restitution fund fine that it stated it had calculated pursuant to the formula in Penal Code section 1202.4 and a matching parole revocation fine. The court overruled defendant's trial counsel's objection to the size of the fines. Defendant filed a timely notice of appeal.

II. Analysis

Defendant contends that the trial court erroneously included the counts that it had stayed pursuant to Penal Code section 654 in making its calculation of the two fines pursuant to the formula in Penal Code section 1202.4, and his trial counsel was prejudicially deficient in failing to object to this error.

When a defendant is convicted of a felony, Penal Code section[1] 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. (Pen. Code, §§ 1202.4, subd. (b)(1), 1202.45.) Section 1202.4 provides that the size of the fine â€