P. v. Anderson
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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