People v. Sencion
People v. Sencion
Opinion of the Court
I. INTRODUCTION
A jury convicted Santiago Gerardo Sencion, Jr., of second degree murder (Pen. Code,
II. DISCUSSION
A. Presentence Custody Credit
The trial court failed to award defendant presentence custody credit. Defendant was in presentence custody from February 23, 2008, to October 25, 2011. Defendant contends, the Attorney General concedes, and we agree he was entitled to 1,341 days of presentence custody credit. (People v. Johnson (2010) 183 Cal.App.4th 253, 288-289 [107 Cal.Rptr.3d 228]; People v. Taylor (2004) 119 Cal.App.4th 628, 645-647 [14 Cal.Rptr.3d 550].) The judgment must be modified to so provide.
B. Restitution Fines
With respect to restitution fines, the trial court orally ordered: “Mandatory minimum restitution fine is imposed as to each count. As to count one, that would be a parole fine of $500, a minimum fine of $500, plus mandatory state fines, and then minimum fines as to the remaining three counts, the $200 level for the parole fine, $200 for the restitution fine.” The trial court’s order is arguably unclear. But the parties agree the trial court imposed a $500 restitution fine (§ 1202.4, subd. (b)) and a $500 parole revocation restitution fine (§ 1202.45) on count 1. And the parties agree the trial court imposed $200 restitution and parole revocation restitution fines on each of the
We find the trial court erred in two respects. First, it was error to impose a restitution fine and a parole revocation restitution fine as to each count. (See People v. Soria (2010) 48 Cal.4th 58, 62-66 [104 Cal.Rptr.3d 780, 224 P.3d 99]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [33 Cal.Rptr.3d 889]; People v. Ferris (2000) 82 Cal.App.4th 1272, 1275-1276 [99 Cal.Rptr.2d 180].) Defendant was subject to only one section 1202.4, subdivision (b)(1) restitution fine and a single section 1202.45 parole revocation restitution fine. Second, it was error to base the restitution fines on counts 3 and 4 because those counts were stayed pursuant to section 654, subdivision (a). (People v. Carlson (2011) 200 Cal.App.4th 695, 710 [133 Cal.Rptr.3d 218]; People v. Le (2006) 136 Cal.App.4th 925, 932-933 [39 Cal.Rptr.3d 146].) However, the section 1202.4, subdivision (b) restitution fines totaled only $1,100, an amount well within the statutory range of $200 to $10,000. Hence, there was no prejudice to defendant. (People v. Schoeb, supra, 132 Cal.App.4th at pp. 864-865; People v. Enos (2005) 128 Cal.App.4th 1046, 1049 [27 Cal.Rptr.3d 610].) The abstract of judgment states that a restitution fine of $1,100 was imposed as was a parole revocation restitution fine in the same amount. Therefore, the abstract of judgment need not be amended in that respect.
C. Count 2: Assault with a Semiautomatic Firearm
At the sentencing hearing, the trial court sentenced defendant on count 2 to two years for assault with a semiautomatic firearm (§ 245, subd. (b)) and one year four months for firearm use. (Former § 12022.5, subds. (a) & (d).) The trial court ordered the sentence to ran concurrent with count 1. The trial court subsequently corrected this sentence by nunc pro tunc order to six years for the assault plus four years for the firearm use for a total of 10 years. Defendant raises no objection to the nunc pro tunc sentence correction. Defendant contends however, and we agree, that the abstract of judgment must be corrected to reflect that the sentence on count 2 runs concurrent with the sentence on count 1.
D. Fees
The trial court failed to orally impose a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) or a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) as to any count. The Courts of Appeal have held the court security fee and the court facilities assessment apply to each count of which a defendant is convicted. (People v. Castillo (2010) 182 Cal.App.4th
The oral pronouncement of judgment is modified to impose a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) as to each count. The judgment is further modified to award defendant credit for 1,341 days in presentence custody. In all other respects, the judgment is affirmed. On remand, the abstract of judgment must be corrected to reflect 1,341 days of presentence custody credit and that the sentence on count 2 runs concurrent with the sentence on count 1. The clerk of the superior court is to deliver a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
Kriegler, J., and Ferns, J.,
Appellant’s petition for review by the Supreme Court was denied March 13, 2013, S207796.
All further statutory references are to the Penal Code unless otherwise noted.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Reference
- Full Case Name
- THE PEOPLE, and v. SANTIAGO GERARDO SENCION, JR., and
- Cited By
- 97 cases
- Status
- Published