People v. Phomvilay CA5

California Court of Appeal Jun 7, 2022 No. F082396Unpublished

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Holding. The court held that the trial court must reduce the defendant's court security and criminal conviction assessment fees to reflect his single remaining conviction and must recalculate his custody credits as of the date of resentencing.

Issues

Whether the trial court erred in failing to reduce court security and criminal conviction assessment fees following the reversal of two of the defendant's convictions.
Whether the trial court erred in failing to update the defendant's custody credits on the abstract of judgment following resentencing.

Disposition. remanded

Quotations verified verbatim against the opinion

“the imposed criminal conviction assessment and court security fee should have been reduced after defendant was resentenced to account for the fact defendant has only sustained one conviction.”

“We conclude a remand is appropriate for the trial court to verify the dates defendant was in custody.”

“the matter is remanded for a recalculation of defendant’s custody credit as of the date of the resentencing hearing and the preparation of an amended abstract of judgment reflecting such credit.”

Filed 6/7/22 P. v. Phomvilay CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F082396 Plaintiff and Respondent, (Super. Ct. No. 15CR-06561) v.

VONG PHOMVILAY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.†

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Franson, J. and Peña, J.

†Retired Judge of the Merced Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

INTRODUCTION Defendant Vong Phomvilay previously appealed his convictions of second degree murder (count 1), attempted murder (count 2), and unlawful possession of a firearm (count 3). Our court reversed the attempted murder and unlawful possession of a firearm convictions and remanded for resentencing. This is an appeal from the resentencing hearing held in February 2021. At resentencing, defendant was resentenced on count 1 and the court reimposed the same court security fee and criminal conviction assessment fee previously imposed. The abstract of judgment from the resentencing hearing also lists the same amount of credit for time served calculated at the original sentence hearing (932 days of actual time). On appeal, defendant contends the court erred in imposing the same fees previously imposed because he is now only convicted of one charge. He also contends the abstract of judgment must be amended to reflect his updated custody credits. The People concede the abstract of judgment must be amended to update the fees and they ask us to remand to the trial court for recalculation of defendant’s custody credits. We agree with the parties and remand for the court to recalculate defendant’s custody credits at the time of the resentencing hearing and to prepare an amended abstract of judgment. FACTUAL AND PROCEDURAL BACKGROUND A jury convicted defendant of murder of one victim (count 1), attempted murder of another victim (count 2), and unlawful possession of a firearm (count 3). The jury also found true an enhancement allegation to the murder charge that defendant personally and intentionally discharged a firearm causing great bodily injury or death in violation of Penal Code section 12022.53, subdivision (d). On September 8, 2017, the court sentenced defendant to a total term of 49 years to life. The minute order from that hearing reflects the court imposed a court security fee of

People v. Phomvilay CA5

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