People v. Settle CA2/8

Filed 10/15/13 P. v. Settle CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B247906

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA058455) v.

RICHARD ALLEN SETTLE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Christopher G. Estes, Judge. Affirmed as modified.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.

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After defendant Richard Settle pled no contest to a vandalism charge, the trial court sentenced him to a state prison term, ordered him to pay restitution to the victim, and assessed various fees. The court did not impose a restitution fine. However, the subsequent minute order and abstract of judgment reflected restitution and parole revocation restitution fines of $600 each. On appeal, Settle contends we should strike the restitution fines and order the trial court to correct the abstract of judgment. The People argue we should either remand the case to the trial court for it to determine whether to impose restitution fines, or impose the minimum allowable fine. We agree with appellant that the restitution fines must be stricken. FACTUAL AND PROCEDURAL BACKGROUND In January 2013, the People charged Settle with one count of felony vandalism (Pen. Code, § 594, subd. (a)), one count of misdemeanor escape from arrest (Pen. Code, § 836.6, subd. (b)), and one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). The People also alleged Settle had suffered two prior strikes and two prior prison terms (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The People alleged Settle destroyed over $400 in kitchen equipment belonging to McDonalds. Settle pled no contest to the vandalism charge and admitted one prior strike. The trial court sentenced Settle to a total state prison term of 32 months. The court ordered Settle to pay restitution of $650 to McDonalds. The court also imposed fees as follows: “$30 criminal conviction fee and $40 court security fee and ten dollars and submit palm prints and DNA testing pursuant to a stipulation and all restitution in the amount of $650 to [McDonalds] and victim restitution to be paid prior to the other fines and fees and will be a forthwith sentence . . . .” The court did not impose a restitution fine or corresponding parole revocation restitution fine. The People did not object. However, the subsequent minute order indicated the court imposed a $600 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and a $600 parole restitution fine pursuant to Penal Code section 1202.45, which was stayed. The abstract of judgment reflected these restitution fines.