People v. Ong CA3

Filed 6/21/16 P. v. Ong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C078740

Plaintiff and Respondent, (Super. Ct. No. CRF14533)

v.

ROBERT LEE ONG,

Defendant and Appellant.

Defendant Robert Lee Ong pled no contest to four counts of assault with a semiautomatic firearm and one count of being a felon in possession of a firearm. The trial court sentenced him to an aggregate term of 12 years eight months in prison. On appeal, defendant contends, and the People concede, the trial court erred by imposing a restitution fine (Pen. Code,1 § 1202.4, subd. (b)) and a parole revocation

1 Undesignated section references are to the Penal Code.

1

restitution fine (§ 1202.45) on each count; however, the parties disagree as to the correct amount of the fines. Defendant contends (based on the minutes of the sentencing hearing) that the restitution fines should total $2,900 each, while the People contend (based on the reporter’s transcript of the sentencing hearing) that the fines should total $3,900 each. We conclude the People are correct, and therefore modification of the judgment, correction of the minutes of the sentencing hearing, and amendment of the abstract of judgment are appropriate here. DISCUSSION2 With respect to restitution fines, the trial court orally pronounced (consistent with the recommendation in the probation report) as follows: “Restitution fine on Count 1 is $1,800. That’s imposed. Second $1,800 restitution fine is suspended. [¶] On Count 2, $600 restitution fine is imposed. $600 restitution fine is suspended. [¶] Count 3, $600 restitution fine is imposed. $600 restitution fine is suspended. [¶] Count 4, $600 restitution fine is imposed. $600 is suspended. [¶] Count 9, $300 restitution fine is imposed. $300 is suspended.” The minutes from the sentencing hearing track the court’s oral pronouncement of the separate fines as to each count, except that the minutes reflect two $800 fines on count 1, rather than the two $1,800 fines the court orally pronounced. Meanwhile, the abstract of judgment reflects a single restitution fine of $2,900 and a single parole revocation restitution fine in the same amount. $2,900 is the total of the separate fines reflected in the minutes ($800 plus $600 plus $600 plus $600 plus $300); the total of the separate fines the court orally pronounced is $3,900. Defendant contends, the People concede, and we agree that the trial court erred by imposing a separate restitution fine and a separate parole revocation restitution fine as to