People v. Porter CA3

Filed 10/14/14 P. v. Porter CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C074767

Plaintiff and Respondent, (Super. Ct. No. 12F01443)

v.

ARMAIL KENYAMA PORTER,

Defendant and Appellant.

In June 2013, defendant Armail Kenyama Porter pled no contest to possessing identifying information of 10 or more people with intent to defraud. The trial court sentenced him to five years in prison and imposed a $1,400 restitution fine with another $1,400 fine suspended pending completion of parole. The trial court told defendant it was imposing the fines pursuant to the formula in subdivision (b)(2) of section 1202.4 of the Penal Code (section 1202.4(b)(2)). This formula multiplies the applicable minimum fine by the number of years defendant was

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sentenced to serve in prison.1 (Pen. Code, § 1202.4, subd. (b)(1)). The trial court erroneously believed the minimum fine to be used in the calculation was $280 when in fact it was $240. The trial court therefore mistakenly multiplied $280 by defendant’s five-year prison sentence and, as a result, imposed two $1,400 fines. Defense counsel failed to advise the trial court that the minimum fine was $240, rather than $280. On appeal, defendant argues (among other things) that his counsel was ineffective for failing to notify the court of its mistake regarding the minimum fine. The People concede and we agree. Accordingly, we will modify the judgment to reduce defendant’s fines to $1,200 each. FACTUAL AND PROCEDURAL BACKGROUND On January 24, 2012, police searched defendant’s home and discovered evidence that he possessed identifying information of 10 or more people with intent to defraud. In June 2013, defendant pled no contest to this crime and admitted committing a serious felony in 1996 and serving prison time in 2005. Both parties waived preparation of a probation report. At the time of his plea, the trial court told defendant he would be “required to pay a restitution fine of not less than $280 or more than $10,000.” At his subsequent sentencing hearing, the trial court sentenced defendant to five years in prison and announced as follows: “Restitution fine pursuant to Penal Code section 1202.4 is set in the amount of $1,400. That is calculated pursuant to the formula of Penal Code section 1202.4(b)(2).”2 The court imposed an additional restitution fine in the same amount that