People v. Montue CA3

Filed 3/8/22 P. v. Montue CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093755

Plaintiff and Respondent, (Super. Ct. No. 16FE005382)

v.

ROGER NICHOLAS MONTUE,

Defendant and Appellant.

Following a jury trial, defendant Roger Nicholas Montue was convicted of two child molestation charges (Pen. Code, § 288, subd. (b)(1))1 and as to each count, the court found true a One Strike law prior conviction (§ 667.61) and a prior serious felony conviction enhancement (§ 667, subd. (a)). (People v. Montue (Oct. 30, 2020, C087029)

1 Undesignated statutory references are to the Penal Code.

1

[nonpub. opn.].)2 The court sentenced defendant to an indeterminate term of 100 years, plus a determinate term of 10 years. On appeal, we affirmed the convictions but concluded under People v. Anderson (2020) 9 Cal.5th 946, defendant did not receive adequate notice the One Strike law would apply to both counts. Accordingly, we struck the One Strike sentence on count two and remanded the matter for resentencing on that count. Defendant appeals from the judgment following remand for resentencing. Defendant contends: (1) the abstract of judgment for both the determinate and indeterminate terms should be corrected to reflect a single minimum restitution fine and parole revocation fine; (2) the court erred in imposing restitution and parole revocation fines above the statutory minimum authorized at the time of the offense; (3) the abstract of judgment improperly includes court operations (§ 1465.8) and criminal conviction assessments (Gov. Code, § 70373); and (4) the trial court erred in refusing to recalculate his custody credits at resentencing. The People agree there should only be a single restitution and parole revocation fine but disagree as to the correct amount of those fines. The People also agree defendant is entitled to have his custody credits recalculated but suggest the matter need not be remanded for this recalculation. We will remand the matter to allow the trial court to clarify the restitution fine, impose the assessments, and recalculate defendant’s custody credits. In all other respects, the judgment is affirmed.