Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE604989
ELIA, J.Appellant contends and respondent concedes that the trial court erred in calculating appellant's restitution and parole revocation fines. We find the concession appropriate and modify the judgment.
Background
Appellant was charged with burglarizing his father's home and taking a coin collection valued at $750.00. A jury found appellant guilty of one count of first degree burglary and one count of receiving stolen property. (Pen. Code, §§ 459-460, subd. (a), 496.) The jury found appellant not guilty of second degree burglary. (Pen. Code, §§ 459-460, subd. (b).) The jury found true an allegation that appellant had served a prior prison term. (Pen. Code, § 667.5.)
The trial court sentenced appellant to state prison for four years on the burglary count and one year for the prior conviction allegation for a total term of five years. The trial court stayed punishment on the receiving stolen property count under Penal Code section 654. The trial court ordered a $2,000 restitution fine "imposed under the formula permitted by Penal Code Section 1202.4(b)," and a suspended $2,000 parole revocation restitution fine pursuant to Penal Code section 1202.45.
Discussion
Appellant contends and respondent concedes that the trial court erred in calculating the $2,000 restitution fine and the $2,000 parole revocation fine. The trial court calculated these fines using the formula in Penal Code section 1202.4, subdivision (b)(2).
This court has held that the ban on multiple punishments under Penal Code section 654 applies to restitution fines imposed under Penal Code section 1202.4 because those fines are, in fact, a form of punishment. (People v. Le (2006) 136 Cal.App.4th 925, 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.)
In calculating the amounts of the restitution fine and the parole revocation fine here, the trial court took the number of years of imprisonment (five), multiplied that number by $200, and multiplied the result by the number of convictions (two). It therefore improperly included the count which represented the receiving stolen property conviction-which the court had stayed pursuant to Penal Code section 654. The trial court should not have included the stayed count in its calculation of the restitution fine and corresponding parole revocation restitution fine. Accordingly, we will reduce both fines to their proper amounts as calculated under Penal Code section 1202.4, subdivision (b)(2), i.e., $1,000.
Because we have concluded that the trial court erred in its calculation of the amount of the restitution fine and corresponding parole revocation fine pursuant to Penal Code section 1202.4, subdivision (b)(2), and reduce both fines accordingly, we need not address appellant's ineffective assistance claim that trial counsel's failure to object to the amounts of the fines constituted ineffective assistance of counsel.
Disposition
The judgment is modified to amend the amount of the restitution fine imposed under Penal Code section 1202.4 to the amount of $1,000, and to amend the amount of the parole revocation restitution fine imposed under Penal Code section 1202.45 to the amount of $1,000 which fine is suspended. 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: RUSHING, P. J., PREMO, J.