P. v. Gilbert
Defendant Rene Joseph Gilbert was convicted after jury trial of driving under the influence of alcohol (DUI) (Veh. Code, 23152; count 1), DUI with a blood alcohol level of 0.08 percent or more (Veh. Code, 23152; count 2), and driving with a suspended or revoked license (Veh. Code, 14601.2, subd. (a); count 3). The trial court found all prior allegations in the information to be true, including that defendant had a prior strike (Pen. Code, 667, subd. (b)-(i), 1170.12)[1] and three prison priors ( 667.5, subd. (b)). Defendant was sentenced to seven years in state prison: in count 1, the felony DUI, the midterm of two years, doubled to four years pursuant to the strike prior; consecutive one-year terms for the each of the three prison priors; and in count 3, driving with a suspended or revoked license, a concurrent sentence of 90 days in county jail. The prison term for the felony DUI with a blood alcohol level of 0.08 percent or more (count 2) was stayed pursuant to section 654. The court also imposed, among other amounts, a restitution fine of $2,800 ( 1202.4), a suspended parole revocation restitution fine in the same amount ( 1202.45), and a court security fee of $20 ( 1465.8).
On appeal, defendant contends the trial court erred in calculating the restitution fine by considering the count for which punishment was stayed and that the correct amount of the restitution fine is $1,400. He argues that his counsels failure to object to the calculation error constituted ineffective assistance. The People concede the calculation error. Court agree with the People and, after correcting a clerical error, Court affirm the judgment as modified.
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