People v. Le CA6

Filed 8/8/14 P. v. Le CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040151 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC802025)

v.

HUY HOANG LE,

Defendant and Appellant.

I. INTRODUCTION Defendant Huy Hoang Le pleaded guilty to murder and admitted that he personally used a handgun. (Pen. Code, §§ 187, 12022.5, subd. (a).)1 The trial court sentenced him to 18 years to life in prison. On appeal, defendant contends that the clerk’s minutes of the sentencing hearing and the abstract of judgment erroneously reflect that the trial court imposed a restitution fine and a parole revocation restitution fine of $3,600 each. According to defendant, the court “deferred” imposition of the restitution fines at the sentencing hearing and, because no such fines were ultimately ordered by the court at a subsequently-held hearing, the matter must be remanded for the trial court to exercise its discretion as to the amount of the restitution fines or, alternatively, this court should impose the statutory minimum amounts. Defendant also contends that, to the extent the trial court imposed such

1 All further statutory references are to the Penal Code unless otherwise indicated.

restitution fines, his trial counsel rendered ineffective assistance by failing to argue for lesser amounts. For reasons that we will explain, we will reverse the judgment and remand the matter for the trial court to clarify whether and in what amount a restitution fine and a parole revocation restitution fine are imposed. We also determine that the court failed to impose the correct amount under section 1465.8, and we will order the amount increased accordingly. II. FACTUAL AND PROCEDURAL BACKGROUND On or about April 8, 2008, defendant and the victim argued and engaged in shoving after they had earlier exchanged words about a female.2 As the victim walked toward defendant, defendant shot the victim in the head. Defendant was arrested in another country after attempting to flee to Vietnam. A. Information and Plea On March 11, 2013, defendant was charged by first amended information with murder with the personal use of a handgun. (§§ 187, 12022.5, subd. (a).) Defendant pleaded guilty to murder and admitted the personal use enhancement with the understanding that he would receive 18 years to life. Prior to taking defendant’s plea, the trial court advised defendant that he may be ordered to pay certain fines and fees, including a mandatory restitution fine of up to $10,000. B. Sentencing On August 2, 2013, defendant was sentenced to 18 years to life. The issue of victim restitution was continued to a future date. The trial court imposed a restitution fine in the amount of $3,600 under the formula set forth in section 1202.4, former subdivision (b)(2), and imposed but suspended an equal amount pursuant to