Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct. No. CC589323
Duffy, J.
In September 2005, defendant Anna Ayala entered unconditional guilty pleas to three felony counts, namely, presenting a false or fraudulent insurance claim (Pen. Code, § 550, subd. (a)(1)), attempted grand theft of personal property over $400 (§§ 664/487, subd. (a)), and grand theft of personal property over $400 (§§ 484-487, subd. (a)). Defendant also admitted the special allegation as to the first two counts that she “damaged or destroyed property” in an amount in excess of $2,500,000.00. (§ 12022.6, former subd. (a)(4)). The facts underlying the convictions for the first two counts arose out of the reported discovery of a severed finger in a bowl of Wendy’s chili that received national notoriety in 2005. The grand theft conviction arose out of an unrelated scheme involving defendant’s purported sale of a mobile home that she did not own.
All further statutory references are to the Penal Code unless otherwise stated.
At the time of Ayala’s initial sentencing in January 2006, the loss threshold specified in section 12022.6, subdivision (a)(4) was $2,500,000.00. (Stats. 1998, ch. 454, § 2.) In 2007 (prior to Ayala’s resentencing), the statute was amended to increase the threshold under subdivision (a)(4) to $3,200,000.00. (See Stats. 2007, ch. 420, § 1.) The total amount of the loss related to the first two counts, as reflected in the court’s victim restitution order, was nearly $22 million.
In defendant’s first appeal, we rejected her challenges to the substantial victim restitution ordered by the court (§ 1202.4, subd. (f)) to 177 line employees and general managers at several local Wendy’s restaurants, and to the imposition of a property damage enhancement (§ 12022.6, subd. (a)(4)). We also held that the court’s imposition of an upper term sentence for the conviction of presenting a false or fraudulent insurance claim violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270, because defendant was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used to impose the upper term sentence. We thus remanded the case for the limited purpose of resentencing.
Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we take judicial notice of our prior opinion in this case. (People v. Ayala (Sep. 21, 2007, H030471) review granted Nov. 28, 2007, S157148, review dism. Jun. 11, 2008.)
Defendant appeals from a judgment entered after resentencing. She contends that the court’s imposition of a restitution fine of $4,200 under section 1202.4, subdivision (b), was erroneous. She argues that the fine was calculated by using a formula provided in the statute and that the court, in making the calculation, improperly included a crime for which punishment was stayed under section 654. Defendant urges further that her counsel was prejudicially ineffective in failing to object to the restitution fine as imposed. We conclude that the fine was improperly calculated and that defendant received ineffective assistance of counsel that was prejudicial. We will order that the judgment be modified to reduce the restitution fine and the corresponding suspended parole revocation restitution fine each to $2,800. As modified, we will affirm the judgment.
Our summary of the evidence is taken directly from our opinion in People v. Ayala, supra, H030471, review granted November 28, 2007, S157148, review dismissed June 11, 2008 (with ellipses denoting material deleted). That summary was based principally upon information contained in the probation report.
I. Counts 1 and 2
On December 20, 2004, a coworker of defendant’s husband, Jaime Plascencia, severed the tip of his finger in a work-related accident occurring in Nevada. In early 2005... Plascencia bought the fingertip for $100.00. He told the coworker that “he was going to have his wife place the fingertip in some food.”
On the evening of March 22, 2005, defendant and other family members (but not Plascencia) went to a Wendy’s fast food restaurant on Monterey Road in San Jose. When she arrived, defendant asked if the restaurant served chili. Sometime later, she claimed that she had bitten into a finger in the chili that she had bought. Defendant “then walked throughout the restaurant with the finger on a napkin as she told customers, ‘Don’t eat the chili[;] look what I found in mine.’ ”
After the incident, defendant’s attorney contacted Wendy’s. Defendant made various public statements about the incident, including television interviews.... [¶] On April 12, 2005, there was a public announcement that Ayala was no longer seeking compensation from Wendy’s.... [¶]... Ultimately, it was determined that the source of the finger was Plascencia’s coworker. [¶] Wendy’s claimed that it had incurred losses of $1,000,000.00 per day between March 22, 2005, and April 20, 2005, as a result of the hoax....
II. Count 3
In September 2002, Bertha Davila entered into a contract to purchase a mobile home from defendant at a price of $52,000.00. Davila paid $11,000.00 as a down payment and in October 2002, she moved into the mobile home with her family. The mobile home in fact belonged to Plascencia.
Defendant took Davila to a real estate office to file the necessary papers. The agent said that Davila could not qualify for the purchase because she lacked a credit history or Social Security number. Defendant, acting as translator, did not communicate the agent’s statement to Davila.... The agent... gave defendant papers for a “ ‘for sale by owner transaction.’ ” Davila completed the forms and gave them to defendant, who agreed to return them to the agent.
Davila assumed that the transaction was concluded, but approximately three weeks after she moved in, she received a notice from a bank telling her that she had three days to vacate the mobile home because Plascencia, the owner, had defaulted on his loan. In November 2003, Davila went to Las Vegas and asked defendant for her money back. Defendant told Davila that she didn’t know what she was talking about and refused to discuss the matter with her. As a result of this incident, Davila lost her entire savings, plus additional money that she had borrowed to tender the down payment to defendant.
PROCEDURAL BACKGROUND
Defendant was charged by second amended complaint with presenting a false or fraudulent insurance claim (§ 550, subd. (a)(1); count 1), attempted grand theft of personal property over $400 (§§ 664/487, subd. (a); count 2), and grand theft of personal property over $400 (§§ 484-487, subd. (a); count 3). The complaint contained a special allegation that, as to counts 1 and 2, defendant damaged and destroyed property of a value exceeding $2,500,000.00 within the meaning of section 12022.6, former subdivision (a)(4).
Defendant’s husband, Plascencia, was also charged in the complaint as to counts 1 and 2. After pleading guilty to presenting a false or fraudulent insurance claim (§ 550, subd. (a)(1)), and to attempted grand theft of personal property over $400 (§§ 664/487, subd. (a)), Plascencia filed a separate appeal with this court. We concluded that there was Blakely error and reversed and remanded the case to the trial court for the limited purpose of resentencing in an unpublished opinion. (See People v. Plascencia (Oct. 21, 2008, H029862 [nonpub. opn.].)
On September 9, 2005, defendant entered an unconditional plea of guilty to all three counts and admitted the enhancements. Defendant was originally sentenced in January 2006. After we decided her first appeal on September 21, 2007, and after review was granted by the Supreme Court and later dismissed, the case was remanded for resentencing. On August 28, 2008, the court imposed a middle term sentence of three years in prison for the count 1 conviction, plus an additional four years for the property damage enhancement under section 12022.6, subdivision (a)(4). She also received a 12-month sentence for the count 2 conviction plus a four-year enhancement under section 12022.6, subdivision (a)(4); the sentence on count 2 was stayed pursuant to section 654. The court imposed a middle term, eight-month, consecutive sentence for the count 3 conviction. In addition, the court ordered that defendant pay victim restitution to Wendy’s International ($21,254,307), Jem Management ($493,344), Jem Management employees ($170,605.46), and Davila ($18,920). The court also ordered that defendant pay a restitution fine of $4,200 under section 1202.4 and a parole revocation restitution fine under section 1202.45 in a like amount; the court suspended the latter fine.
Defendant filed a timely appeal from the judgment in which she challenged the sentence or other matters occurring after the plea.
DISCUSSION
I. Imposition of Restitution Fine Under Section 1202.4, Subdivision (b)
Defendant asserts a single challenge on appeal. She urges that the court erred in imposing a restitution fine of $4,200 that was determined by applying the discretionary formula provided under section 1202.4, subdivision (b)(2). Using the formula, the court calculated the fine by erroneously including a crime for which punishment was stayed under section 654. As a result, the restitution fine and the parole revocation restitution fine (imposed under § 1202.45) were each in the amount of $4,200, instead of $2,800 (that would have been imposed using the correct calculation). Defendant contends that her trial counsel was prejudicially ineffective in failing to object to these errors. We agree with defendant’s position.
Defendant also contended in her opening brief that the court erred in imposing a $10 fine under section 1202.5. She noted in her reply brief that this contention was without merit and that she therefore withdrew it.
Section 1202.45 provides that, in all convictions in which the sentence includes parole, there is a mandatory, “additional parole revocation restitution fine” identical in amount to that imposed under section 1202.4, subdivision (b). This additional fine “shall be suspended unless the person’s parole is revoked.” (§ 1202.45.)
Section 1202.4 provides that whenever one is convicted of a crime, the court must impose both a restitution fine (§ 1202.4, subd. (a)(3)(A)), and restitution to the victim. (§ 1202.4, subd. (a)(3)(B).) As we have explained: “The trial court shall impose the restitution fine ‘unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.’ ([§ 1202.4, s]ubds. (b), (c).)” (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379.) The amount of the restitution fine is within “the discretion of the court and commensurate with the seriousness of the offense” (§ 1202.4, subd. (b)(1)); however, it must be no less than $200 and no more than $10,000 if the crime is a felony. (Ibid.) The court is not required to make express findings or give a formal statement of reasons on the record for the imposition of such fine. (People v. Urbano (2005) 128 Cal.App.4th 396, 405.) And the statute provides further that the court may employ a formula in setting the felony restitution fine, multiplying $200 (i.e., the statutory minimum) by the number of years of imprisonment ordered and then multiplying that figure by the number of counts of which the defendant is convicted. (§ 1202.4, subd. (b)(2).)
In arguing that the court below erred, defendant cites People v. Le (2006) 136 Cal.App.4th 925 (Le). In Le, we held that the court erred in imposing consecutive sentences for the defendant’s robbery and burglary convictions, concluding that because the two offenses were committed in an indivisible course of conduct with one purpose, the sentence on the burglary conviction should have been stayed pursuant to section 654. (Le, supra, at pp. 930-931.) We then held that the ban on multiple punishments under section 654 applies to restitution fines imposed under section 1202.4 because those fines are a form of punishment. (Le, supra, at p. 933.) “Thus, a restitution fine calculated under the formula provided by section 1202.4, subdivision (b)(2), constitutes a criminal penalty, not a civil remedy. [Citation.]” (Ibid., citing People v. Hanson (2000) 23 Cal.4th 355, 361-362.) The trial court in Le had imposed a restitution fine by using “ ‘... the formula permitted by [section] 1202.4.’ ” (Le, supra, at p. 932.) In calculating the fine, the court had included the burglary offense for which the sentence should have been suspended under section 654. (Le, supra, at p. 933.) Given section 654’s applicability to restitution fines, therefore, we concluded that the court erred by including the burglary offense in calculating the fine. (Le, supra, at p. 934.) We held further that the lack of objection to the improper fine by defendant’s attorney constituted ineffective assistance of counsel and that this error was prejudicial in that it was reasonably probable that the trial court would have imposed a smaller restitution fine had an objection been made. (Id. at pp. 935-936.) Accordingly, we ordered that the abstract of judgment be modified to reduce the amount of the restitution fine—as well as the corresponding parole revocation restitution fine—calculated in accordance with the formula under section 1202.4, subdivision (b)(2) by excluding the burglary conviction. (Le, supra, at p. 936.)
“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....” (§ 654, subd. (a).)
Le is controlling. Here, as in Le, the court determined the amount of the restitution fine “under the formula permitted by Penal Code section 1202.4[, subdivision] (b).” In arriving at the figure of $4,200, it is plain that the court, using the formula permitted under section 1202.4, subdivision (b)(2), multiplied $200 by seven (the number of years of imprisonment), and then multiplied that figure by three (the number of felony counts of which defendant was convicted). In so doing, the court erroneously included the attempted grand theft count, the sentence for which had been stayed pursuant to section 654. (Le, supra, 136 Cal.App.4th at p. 934.) The fine, properly calculated using the formula, should have been $2,800. Moreover, as we concluded in Le (id. at p. 935), the absence of an objection to the fine by defendant’s trial attorney constituted prejudicially ineffective assistance of counsel, in that (1) “counsel’s performance fell below a standard of reasonable competence,” and (2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Here, competent counsel would have objected that the inclusion of the attempted grand theft conviction in calculating the restitution fine under the formula was improper under Le. Further, we find it reasonably probable that the court would have imposed a smaller fine had the error been brought to the court’s attention.
Accordingly, under Le, the restitution fine—and the corresponding parole revocation restitution fine—must be reduced to $2,800. We will therefore order that the abstract of judgment be modified to provide that the restitution fine (§ 1202.4, subd. (b)) and the (suspended) parole revocation fine (§ 1202.45) are each $2,800.
DISPOSITION
The judgment is ordered modified to reduce the restitution fine imposed pursuant to section 1202.4, subdivision (b), from $4,200 to $2,800, and the (suspended) parole revocation restitution fine imposed pursuant to section 1202.45 from $4,200 to $2,800. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Mihara, J.