Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. CR103118, Bernard E. Revak, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part and remanded with directions.
McINTYRE, J.
A jury found Tuan Van Tran guilty of first degree murder and three counts of residential robbery with firearm enhancements. At sentencing in September 1989, the court ordered a total of $20,000 in restitution and/or a restitution fine. Tran appealed. In January 1991 this court remanded the case to the trial court "for imposition of a restitution amount within the $10,000 maximum." (People v. Tran (Jan. 23, 1991, D011037) [nonpub. opn.].)
In June 1991 the trial court "order[ed] $10,000 restitution to be divided among the victims. . . ." There is no mention of a restitution fine. In April 2007 the Department of Corrections and Rehabilitation requested clarification of the restitution order. In December the trial court held a hearing regarding restitution. According to the minute order, the trial court ruled "Restitution and fine ordered on 9-11-89 remain[] in effect." There was no reporter's transcript because the court reporter was unable to find her notes. This court accordingly directed the trial court to settle the record. The trial court's settled statement says that at the December hearing, "the court ordered victim restitution in the total amount of $10,000, and stated it was the same order as in 1991."
Tran appeals, contending the restitution order should be vacated because the absence of a reporter's transcript of the December 2007 hearing and the discrepancy between the minute order and the settled statement render the record unreliable and inadequate. The settled statement is a record "preserv[ing] and conform[ing] to the proceedings actually undertaken in the trial court." (People v. Tuilaepa (1992) 4 Cal.4th 569, 585.) The absence of a reporter's transcript does not render the record unreliable and inadequate. Nor does a discrepancy between two components of the record render the record unreliable and inadequate. (People v. Smith (1983) 33 Cal.3d 596, 599.)
Alternatively, Tran contends the total amount of restitution ordered in both 1989 and 1991 exceeds the statutory maximum, requiring reversal of the December 2007 order. Tran asks that this court vacate the December order and direct the trial court to hold a new restitution hearing or enter a new order requiring restitution, a restitution fine, or both, in a total amount not exceeding $10,000. The People properly concede that this court's limitation of restitution to $10,000 is the law of the case (People v. Turner (2004) 34 Cal.4th 406, 417) and the December 2007 order should be clarified to reflect that the total amount of restitution and a restitution fine does not exceed $10,000.
DISPOSITION
The order for restitution and/or a restitution fine is reversed. The trial court is directed to enter an order for restitution and/or a restitution fine in a total amount not to exceed $10,000. In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, Acting P. J., O'ROURKE, J.