People v. Le CA3

Filed 4/3/14 P. v. Le CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C071868

v. (Super. Ct. No. 92F11292)

LONG PHI LE,

Defendant and Appellant.

In this appeal, defendant Long Phi Le appeals the trial court’s imposition of a $200 restitution fine. Defendant contends the trial court erred when it imposed the $200 fine because it did so under the mistaken belief it could not impose less than the minimum amount for such fines. He requests this court to strike the fine. While we agree the trial court erred, we conclude the error was harmless. Accordingly, we affirm the order imposing the $200 restitution fine. BACKGROUND In August 2007, on retrial, a jury convicted defendant Long Phi Le of first degree murder and found true a firearm use enhancement. He was sentenced to serve a prison term of 29 years to life. He appealed and we affirmed the conviction, but remanded the

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matter for a redetermination of the restitution fine and/or victim restitution.1 (People v. Le (Sept. 10, 2009, C057628) [nonpub. opn.].) On October 8, 2010, the trial court conducted a new restitution hearing and imposed $3,500 for restitution and $6,500 as a restitution fine. Defendant again appealed, and in an opinion issued December 28, 2011 (People v. Le (Dec. 28, 2011, C066674) [nonpub. opn.]), we struck the trial court’s imposition of both victim restitution and the restitution fine because the court had determined these amounts without defendant being present and without sufficient evidence regarding defendant’s ability to pay. (People v. Le, supra, C066674.) On July 13, 2012, the court conducted another restitution hearing, this time with defendant present. At the hearing, the trial court correctly noted the applicable restitution statutes were those in existence in 1992, the year the murder was committed. After defendant argued he had no ability to pay either victim restitution or a restitution fine because for the past 10 years he had been placed by prison authorities in a category where he received “no pay whatsoever,” the court observed it was required to consider not only defendant’s current earning state, but also his future income. The court further observed the probation report showed defendant had previously been “self-employed” as a manicurist, earning about $4,000 per month. The court was also informed defendant’s earliest parole date was in 2021. The court reimposed restitution of $3,500 to be paid to the Victim’s of Violent Crime Program. (Defendant does not appeal from this restitution order.) As to the restitution fine, the court stated it was ordering “the statutory minimum restitution fine of $200, based on his inability to pay. [¶] And considering that he does not even have a parole eligibility date until 2021, I’m comfortable just ordering the statutory minimum of $200, rather than the 10,000 or 6,500 previously imposed.” When counsel informed the court it was defendant’s personal position that because he had no