P. v. PAUL
Filed 4/26/06
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. PAUL LAI et al., Defendants and Appellants. | B165662 (Los Angeles County Super. Ct. No. BA216934) |
APPEAL from judgments of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Reversed in part, affirmed in part, and remanded.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant Sam Mui Luu.
Marilyn S. White-Redmond and Tracy Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Paul Lai.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc J. Nolan, Chung L. Mar and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
introduction
For thefts of more than $100,000, but less than $500,000, may a defendant be punished by consecutive enhancements under both Penal Code sections 186.11, subdivision (a)(3), and 12022.6, subdivision (a)?[1] Further, if the defendant is sentenced to state prison, do sections 1202.4, subdivision (f), and 186.11, subdivision (d), authorize an order of restitution for losses caused by crimes other than those for which the defendant was convicted? Finally, if the court imposes a fine under section 186.11, subdivision (c), does subdivision (l) of that statute preclude imposing a restitution fine (§ 1202.4, subd. (b)), and a parole revocation restitution fine (§ 1202.45)?
Deciding these issues in the published portion of our opinion, we first hold that when a defendant is subject to the additional prison terms of both sections 186.11, subdivision (a)(3) and 12022.6, subdivision (a), the court must impose both terms, but stay execution of the term imposed under section 12022.6, subdivision (a). Next, we hold that for non-probationary sentences, neither section 1202.4, subdivision (f) nor section 186.11, subdivision (d) permit restitution for losses caused by crimes for which the defendant was not convicted. Finally, we hold that section 186.11, subdivision (l) does not preclude imposing restitution fines (§§ 1202.4 & 1202.45) in addition to the fine of section 186.11, subdivision (c).
In the unpublished portion of our opinion, we address various other sentencing issues raised by appellants. As to those issues, we find no error. We also address, and agree with, respondent's contention that the trial court erred in failing to impose mandatory state and county penalty assessments.
PROCEDURAL BACKGROUND
A jury convicted appellants Paul Lai and Sam Mui Luu of conspiracy to commit welfare fraud (§ 182, subd. (a)(1); count 1), welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2); count 2), and 23 counts of perjury by false application for aid (§ 118; counts 3 through 25). The jury convicted Luu alone of an additional 12 counts of perjury (counts 26 through 37). As to the conspiracy and welfare fraud counts, the jury found true the allegation under section 12022.6, subdivision (a)(2) that the amount taken was more than $150,000. As to all counts, the jury found true the allegation under section 186.11, subdivision (a), the so-called â€
