P. v. Leon

Filed 2/7/07 P. v. Leon CA6

Received for filing 2/23/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant David Michael Leon was convicted of first degree murder. On a previous appeal we remanded for correction of errors in the imposition of certain fines. On this appeal defendant contends that the trial court again erred on remand. Respondent concedes the error. The only issue is whether we can direct a correction of one of the fines without further ado, or whether the nature of the error requires further proceedings below. We have concluded that further proceedings would serve no purpose. Accordingly we will direct the trial court to strike one fine and reduce the other to a specified amount.

Background

In our previous decision, of which defendant has requested and we have granted judicial notice, we summarized the events and proceedings leading to defendants conviction of the 1983 murder of Marlon Bass. (People v. Leon (Feb. 24, 2006, H026042) [nonpub. opn.].) In that appeal we rejected various challenges to the conviction itself, but sustained defendants challenges to the imposition of certain fines. The court had imposed a $5,400.00 restitution fine under Penal Code section 1202.4 and a parole revocation fine of like amount under Penal Code section 1202.45. Defendant contended that these fines violated the constitutional prohibition against ex post facto punishments. (People v. Leon, supra, at p. 35 [nonpub. opn.].) We accepted defendants contention that he could not be fined under those statutes, but also accepted respondents contention that defendant could be fined under former Government Code section 13967, which in 1983 authorized fines on persons convicted of violent crimes resulting in the injury or death of another person. (People v. Leon, supra, at p. 35 [nonpub. opn.].) We acknowledged that there was then no equivalent to a parole revocation fine, and that any remand could not embrace the re-imposition of such a fine. (People v. Leon, supra, at p. 35, fn. 20 [nonpub. opn.].) However, we reversed and remanded for a restitution fine hearing in accordance with former Government Code section 13967. (People v. Leon, supra, at p. 36 [nonpub. opn.].)

On remand, the court scheduled a restitution hearing, apparently for June 28, 2006. A court officer inquired of the sentencing judge whether defendant should be transported back from state prison for the purpose of conducting a Restitution Fine Hearing. The record contains no reply to this inquiry, but on June 20 the court conducted a hearing at which it recited, There is no appearance by defense counsel or the prosecution. [] Defense counsel was contacted, indicated that he waived his clients appearance. He did not want Mr. Leon brought back for this sentencing and agreed that the 200 minimum is the appropriate remedy. Accordingly, the courtacknowledging that there was no evidence of defendants ability to payimposed a restitution fine of $200, which it considered the statutory minimum at the time of the offense. The court also struck the fine previously imposed pursuant to 1205.45 [sic], but then imposed a $200 fine in its stead as well. The amended abstract of judgment thus recites that defendant is fined $200 per PC 1202.4(b) forthwith per PC 2085.5, and $200 per PC 1202.45 suspended unless parole is revoked.

Defendant filed this timely appeal from the judgment as so modified.

Discussion

Defendant contends that the imposition of fines in his absence violated his federal and state constitutional and statutory rights to be present. He contends that the error was structural and thus mandates reversal without a showing of prejudice; alternatively, he contends, the error cannot be found harmless beyond a reasonable doubt. He asserts that defense counsel rendered ineffective assistance in two respects: first, by waiving defendants presence at the hearing, and second, by erroneously conceding that the minimum fine at the time of the offense was $200, when in fact it was $10.

We find it unnecessary to sift through the constitutional issues because no matter how they are resolved, there is only one suitable appellate remedy: a remand with explicit instructions to strike both fines and to impose a single fine of $10. This is because, as respondent concedes, that was the minimum fine that could be imposed under the version of Government Code section 13967 in effect in 1983, when the murder occurred. (See People v. McCaskey (1985) 170 Cal.App.3d 411, 414, 418.) Ten dollars is thus the amount in which the fine should have been imposed when the prosecution declined to contest the matter. (See People v. Vieira (2005) 35 Cal.4th 264, 405-306.)

As respondent also concedes, and as our previous opinion made quite clear, there was no statutory basis for imposition of a parole revocation fine at the time of the offense, and therefore no such fine can or should be imposed. (People v. Leon, supra, at p. 35, fn. 20 [nonpub. opn.].)

In view of these well taken concessions, the issues raised by defendant concerning the applicable rule of reversible error appear academic. By any standard the error warrants reversal, and the correct disposition is to reverse with instructions to modify the judgment to impose a single restitution fine of $10. We will therefore so direct.

Disposition

The judgment is reversed and remanded for the sole purpose of striking both the restitution fine and the parole revocation fine, and imposing a single restitution fine in the amount of $10.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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