People v. Johnston CA1/4

Filed 5/21/14 P. v. Johnston CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A139258 v. TOMMY RAY JOHNSTON, (Alameda County Super. Ct. No. CH50323) Defendant and Appellant.

I. INTRODUCTION After appellant Tommy Ray Johnston pleaded no contest to carjacking and admitted the personal use of a firearm in the commission of the carjacking, the trial court imposed an aggregate state prison term of 19 years. The only issue appellant raises on appeal is that the trial court erred in its calculation and imposition of an aggregate restitution fund fine of $5,320 instead of $3,800—an error totaling $1,520. Because his attorney failed to object to the higher fine amount, appellant asserts that, if his objection to the higher fine was forfeited, his counsel was ineffective in not objecting. Although the forfeiture rule may very well apply, in order to forestall further litigation over this issue, we exercise our discretion and reach the merits of appellant’s claim. It is clear to us that the trial court relied on the probation department’s suggested fine calculation that was based on a minimum fine available at the time of sentencing ($280), rather than that set forth by statute at the time of the underlying offense ($200).

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Therefore, we order the restitution fine reduced to $3,800, and the abstract of judgment modified accordingly. II. PROCEDURAL HISTORY1 On April 11, 2011, the Alameda County District Attorney filed a felony information charging appellant with one count of carjacking (Pen. Code, § 215, subd. (a)),2 and one count of robbery (§ 211). The crimes were alleged to have been committed on January 8, 2011. The information also alleged, in committing these crimes, appellant personally used a firearm, within the meaning of sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (g). Several other sentencing enhancements, not directly relevant to this appeal, were also alleged in the information. On April 12, 2013, pursuant to a negotiated plea agreement, appellant pleaded no contest to one count of carjacking and admitted the personal use of a firearm relating to that crime. The remaining counts and allegations were dismissed, and the matter was set for sentencing on May 10, 2013. Prior to sentencing, a probation officer’s report and recommendation (probation report) was prepared and submitted to the court. As is material here, included in the probation report’s recommendations was that a restitution fine under section 1202.4, subdivision (b)(1) be imposed in the total amount of $5,320. No computation was provided indicating how the probation department arrived at that sum. Sentencing took place on May 10, 2013. The court reporter’s transcript of the sentencing hearing is one page, consisting of the following: “THE COURT: [Appellant] is represented by Mr. Hong; the People by Mr. Burke. “Any legal cause? “MR. HONG: No, Your Honor.