Opinion
D074656
10-08-2019
THE PEOPLE, Plaintiff and Respondent, v. DARRYL LEE DUNSMORE, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS215653) APPEAL from an order of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Reversed with directions. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal after remand. (People v. Dunsmore (Dec. 22, 2011, D057645) [nonpub. opn.] (Dunsmore I)). In Dunsmore I, we reversed the portion of the sentence related to fees and fines imposed on defendant Darryl Lee Dunsmore, and remanded with directions to identify and impose all mandatory fines, assessments, and fees. We affirmed the judgment in all other respects. (Dunsmore I, at p. 15.)
We grant the People's unopposed motion filed April 19, 2019, to take judicial notice of our earlier, unpublished opinion, Dunsmore I, and of the record and remittitur in that prior appeal, pursuant to Evidence Code sections 452, subdivision (d)(1) and 459.
We also grant additional unopposed requests for judicial notice: (1) Dunsmore's first request, filed June 24, 2019, to take judicial notice of a letter from the California Department of Corrections and Rehabilitation (CDCR) notifying the trial court of errors in the May 3, 2019 Amended Abstract of Judgment (AAJ); and (2) Dunsmore's second request filed July 16, 2019, to take judicial notice of the trial court's order filed June 20, 2019, denying two of Dunsmore's petitions for writ of habeas corpus (case Nos. HSC 11201 & SCE 215653) and ordering further proceedings to address the sentence.
In this appeal, defendant challenges the court's denial of his motion to have new counsel appointed, and its imposition of increased fines, assessments, and fees from those previously imposed by the court. He also requests that the case be remanded for the court to consider his prior serious felony conviction. In supplemental briefing, defendant also argues that he was entitled to an ability-to-pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
As we explain, we reverse the court's order following remand with respect to the increased fines, assessments, and fees imposed on defendant and order the court to make a new order consistent with this opinion. We further conclude remand is necessary to allow the court to exercise its discretion to strike with respect to the five-year enhancement for defendant's prior serious felony conviction. We direct the court to correct other sentencing errors.
BACKGROUND
Facts
We briefly summarize the facts as set forth in Dunsmore I.
Dunsmore had a long history of harassing his ex-wife. Joseph C., a friend of Dunsmore, tried to convince Dunsmore to leave his ex-wife alone. In December 2007, Joseph agreed to meet with Dunsmore to help him recover property that he had left at his ex-wife's home. Terry R., Joseph's friend, drove Joseph over to Dunsmore's home. Dunsmore was sitting in his full-sized van, with the motor running, when Terry and Joseph arrived and got out of their car. Dunsmore turned on the headlights of his van, revved its engine, and sped straight toward Joseph and Terry. Dunsmore crashed his van at high speed into Terry's car, knocking down Terry, mangling his knee and destroying his car. Dunsmore accelerated and turned the van toward Joseph, who was standing near a telephone pole. Dunsmore flattened the telephone pole and chased Joseph through neighbors' front yards. Dunsmore knocked Joseph down from behind with his van, after driving the van through a chain link fence and over a brick retaining wall. While leaning his head out of the van's window, Dunsmore drove the van back and forth over Joseph's body several times, breaking several bones and inflicting other injuries. Joseph had lingering injuries at the time of trial. (Dunsmore I, supra, D057645, at pp. 2-9.)
Procedural Background
In 2010, a jury convicted Dunsmore of one count of attempted voluntary manslaughter as a lesser included offense of murder (§§ 192, subd. (a), 664; count 1), and two counts of assault with a deadly weapon and by force likely to cause great bodily injury (§ 245, subd. (a)(1); counts 2 and 3). Allegations regarding personal use of a deadly and dangerous weapon (§ 1192.7, subd. (c)(23)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)) were also found true, along with true findings that Dunsmore had a prior prison conviction (§ 667.5, subd. (b)), that was also a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior strike conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)). (Dunsmore I, supra, D057645, at pp. 1-2.)
The trial court sentenced Dunsmore to a total term of 22 years in prison. The court imposed the upper term on count 1, attempted voluntary manslaughter, doubled to 11 years due to the prior strike conviction, plus three years, consecutive, for personal infliction of great bodily injury, and one year, consecutive, for use of a weapon; on count 2, assault with a deadly weapon on the same victim, the court imposed the upper term, doubled, of eight years, plus a consecutive term of three years for personal infliction of great bodily injury and a term of one year for the weapon enhancement, all stayed pursuant to section 654; and on count 3, assault with a deadly weapon on a second victim, the court imposed a consecutive term of two years, or one-third of the middle term doubled, plus one year for the weapon enhancement. Punishment on the weapon enhancement was stayed pursuant to section 1385. The court also imposed one year, consecutive, for the prison prior (§ 667.5, subd. (b)), stayed pursuant to People v. Jones (1993) 5 Cal.4th 1142 (Jones), and imposed five years, consecutive, for the prior serious felony conviction (§ 667, subd. (a)). The court reserved jurisdiction over direct restitution to the victim and imposed the minimum restitution fine (§ 1202.4, subd. (b)) and suspended parole revocation fine (§ 1202.45) of $200 each. It refused to impose other mandatory fines, fees, surcharges, or penalty assessments. The trial judge stated, "Let me tell you my philosophy on fines. They want a zillion and a half dollars in fines. Okay. If I'm going to send a man to prison, whether, sir, it's for two years or 22 years, I am not tacking on humongous restitution fines and fees. I don't believe in it."
See section E.1. post, for discussion of the weapon enhancement.
On appeal, we affirmed the conviction of guilt and remanded for imposition of mandatory fees. Specifically, we stated:
"The portion of the sentence related to fines, fees, surcharges, and penalty assessments is reversed. The matter is remanded to the trial court with directions to identify and impose all mandatory fines, fees, surcharges, and penalty assessments. . . . In all other respects, the judgment is affirmed." (Dunsmore I, supra, D057645, at p. 15.)
Remand
The presiding judge at the time of sentencing retired and a different judge handled the case on remand. The court imposed a restitution fine in the amount of $1,000 and an additional suspended parole revocation restitution fine of $1,000. The court imposed the mandatory criminal conviction assessment of $90 (Gov. Code, § 70373), a criminal justice administration fee in the amount of $154 (Gov. Code, § 29550.1), and a court operations assessment in the amount of $90 (§ 1465.8).
Before June 29, 2011, the fee under section 1465.8 was called a court security fee.
Dunsmore filed a timely notice of appeal.
DISCUSSION
A. Motion to Replace Counsel
Dunsmore requested that his appointed counsel be changed before the hearing on remand. The trial court denied the request after a hearing. It did not abuse its discretion.
A defendant is entitled to new appointed counsel if the record shows the first appointed attorney is not providing adequate representation or that there is such an irreconcilable conflict that ineffective representation is likely to result. (People v. Valdez (2004) 32 Cal.4th 73, 95; People v. Marsden (1970) 2 Cal.3d 118, 124-125 (Marsden).) When a defendant requests substitute appointed counsel, the trial court must permit the defendant to explain the reasons for his dissatisfaction with his current counsel. (People v. Sanchez (2011) 53 Cal.4th 80, 87, 90 (Sanchez); Marsden, at pp. 123-126.) We review the trial court's resolution of Marsden issues for an abuse of discretion. (Sanchez, at p. 87.)
In the Marsden hearing, Dunsmore claimed he had a conflict of interest with his attorneys at the Office of Assigned Counsel (OAC) because he had pending litigation against them. Dunsmore complained that relevant and exculpatory evidence about his crimes had not been disclosed to him. He believed he was denied fair representation and a fair trial.
Attorney Michael Garcia, head of the OAC, explained that he received an order from the trial court appointing the OAC to assign counsel on the case for the sole issue on remand, imposition of mandatory fees. Garcia first appointed William Daley. Dunsmore filed a lawsuit against the OAC, Garcia, Daley and Does 1 through 10, asserting that Daley was a family law attorney. Daley obtained an order from the court permitting him to withdraw as attorney due to a conflict of interest with Dunsmore. Garcia then appointed Craig Leff to represent Dunsmore. Dunsmore promptly added Leff to his lawsuit.
In fact, Daley was a criminal defense attorney with close to 30 years of experience.
Attorney Leff testified that he had been a criminal defense attorney for close to 20 years, and had tried "a couple of dozen cases" including several murder cases. He had spoken with Dunsmore, reviewed the case, our prior decision, and the law on restitution fines. He stopped working on the case when he learned he was a defendant in Dunsmore's civil case. He said he was prepared to argue the case. Leff had explained to Dunsmore that his representation was limited to the matters on remand from our court and that an actual conflict of interest did not exist. Garcia also explained to Dunsmore that the OAC was authorized to represent Dunsmore only with respect to the issue on remand from this court, that is, the issue of fines, and that Dunsmore could raise additional issues himself by filing a separate petition for writ of habeas corpus.
The trial court affirmed that the proceedings were limited to the issue remanded by this court: the imposition of all mandatory fines, fees, surcharges and penalty assessments. It found that Leff was an experienced criminal defense attorney and was adequately representing Dunsmore. The trial court denied the motion.
The trial court did not abuse its discretion. An appellate court's remand defines the scope of the jurisdiction of the court to which the matter is returned. (People v. Ramirez (2019) 35 Cal.App.5th 55, 63 (Ramirez).) " '[W]hen a reviewing court identifies error relating solely to sentencing, it ordinarily does not reverse the judgment of conviction or remand for a new trial. Rather, typically, it simply remands for resentencing.' " (Id. at p. 63, quoting Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1255.) Appointed defense counsel was authorized to address only the issue of sentencing, specifically the mandatory fees and fines that were the subject of our remand in Dunsmore's prior appeal. Counsel was not ineffective in failing to address other issues raised by Dunsmore and the limitation of authorization did not create a conflict of interest.
Further, Dunsmore cannot substitute attorneys at will by suing each attorney and then claiming a conflict. (People v. Horton (1995) 11 Cal.4th 1068, 1106.) A "defendant's decision to file [a lawsuit] against appointed counsel does not require disqualification unless the circumstances demonstrate an actual conflict of interest." (Ibid.) Lawsuits without legitimate bases do not create a conflict of interest. (People v. Hardy (1992) 2 Cal.4th 86, 137-138.) Dunsmore never expressed a real conflict with the OAC or with Leff. His conclusory allegations were not sufficient to show any actual conflict. The trial court reasonably found that Leff was an experienced criminal defense attorney ready and able to provide competent representation for Dunsmore on the single issue within the scope of his authorization. The court did not abuse its discretion. No error occurred. B. The Restitution and Parole Revocation Fines Must Be Reduced
At the original sentencing, the trial court imposed a $200 restitution fine and a suspended $200 parole revocation fine. There was no error in imposition of these fines. Two hundred dollars was the minimum restitution fine that could be imposed in 2007, when Dunsmore committed his crime. (§ 1202.4, subd. (b)(1), eff. Jan. 1, 2006 - Dec. 31, 2007.)
From January 1, 2006 through December 31, 2007, subdivision (b) of section 1202.4 stated in part:
"(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony."
On remand, the court imposed a higher restitution fine in the amount of $1,000 with an equal parole revocation restitution fine, suspended. Dunsmore did not object to the higher amount of these fines. We exercise our discretion to address the issue notwithstanding Dunsmore's failure to challenge the amount of the fine below. We have the discretion to consider a constitutional issue on appeal that is a pure question of law even when there was no objection below. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) Addressing the issue forestalls a claim of ineffective assistance of counsel. (See People v. Daniels (2012) 208 Cal.App.4th 29, 31 (Daniels).)
The California Constitution's prohibition on double jeopardy precludes the imposition of more severe punishment on resentencing. (Cal. Const., art. I, § 15; Hanson, supra, 23 Cal.4th at p. 361.) The purpose is to avoid chilling a defendant's right to appeal by permitting a higher punishment if he or she prevails. Restitution fines are punishment. (Hanson, at p. 361.) The Supreme Court in Hanson and a Court of Appeal in Daniels have both found that restitution fines, because they are punishment, cannot be increased after appeal unless the aggregate monetary punishment remains the same or lower. (Id. at pp. 366-367; Daniels, supra, 208 Cal.App.4th at p. 32.) We agree with both parties that imposition of a restitution fine and parole revocation restitution fine that resulted in a higher aggregate monetary punishment violated the California right against double jeopardy. Therefore, we reverse the restitution fine and parole revocation restitution fine order and direct the trial court on remand to strike the higher fines of $1,000 that were imposed in 2018 for restitution and parole revocation and reimpose the lower fines of $200, and to correct the amended abstract of judgment to reflect the lower amounts. C. Fees
At resentencing on August 24, 2018, the trial court also imposed $90 for court operations assessments on the three felony convictions (§ 1465.8), $90 for criminal conviction assessments for Dunsmore's three felony convictions (Gov. Code, § 70373, subd. (a)(1)), and a criminal justice administration fee of $154 (Gov. Code, § 29550.1). These were all mandatory fees. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543 fn. 2.)
1. Court Operations Assessment
In 2007, when Dunsmore committed his crimes, section 1465.8 provided for a $20 assessment for every conviction for a criminal offense, called a court security fee. (Former § 1465.8, subd. (a)(1), eff. Aug. 17, 2003 to Dec. 31, 2007.) The statute was amended, effective October 19, 2010, to increase the assessment to $40 per conviction. (Stats. 2010, ch. 720, § 33, p. 4918.) The statute has been subsequently amended but the assessment remains at $40 per conviction. (Stats. 2012, ch. 41, § 67, eff. June 27, 2012.)
Fees and assessments are collateral to a defendant's crimes and not punishment when they are "not oriented toward [his or her] rehabilitation but toward raising revenue for court operations." (People v. Kim (2011) 193 Cal.App.4th 836, 842; People v. Alford (2007) 42 Cal.4th 749, 759 (Alford).) As such, the ex post facto prohibitions do not apply. (Alford, at p. 759.) Statutes assessing nonpunitive fees and assessments are applied prospectively. (Ibid.) Thus, the assessment is in the amount statutorily required at the time of sentencing, not at the time of the crime. (Ibid.)
The trial court erred in imposing $30 per conviction for the court operations assessment instead of the mandatory $40 per conviction. We direct the trial court on remand to impose the mandatory court operations assessment of $40 on each conviction and to amend the abstract of judgment accordingly.
2. Ability to Pay
Dunsmore further requests in a supplemental brief that this case be remanded for the trial court to determine if he has the ability to pay the fines and fees imposed on him. He contends that the trial court violated his right to due process under the state and federal constitutions when it imposed restitution and parole revocation fines and fees for court operations and for criminal convictions without first, on its own motion, determining his ability to pay those costs, relying on Dueñas, supra, 30 Cal.App.5th 1157 (Contra, People v. Hicks (Sept. 24, 2019) ___ Cal.App.5th ___, 2019 WL 4635156, pp. *5 -*7 [Dueñas wrongly decided]; People v. Aviles (Sept. 13, 2019) ___ Cal.App.5th ___, 2019 WL 4408495, pp. *33-*43 (Aviles) [same]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.) [same]; People v. Santos (2019) 28 Cal.App.5th 923, 935 (dis. opn. of Elia, J.) [same].)
Dunsmore can raise this objection on remand and make whatever record he deems appropriate. We observe that Dunsmore would have a difficult time in showing an inability to pay fees because he can earn money while serving his lengthy prison term. (Aviles, supra, 2019 WL 4408495, pp. *43-*44 [any error under Dueñas harmless beyond a reasonable doubt because defendant can earn wages in prison]; People v. Johnson (2019) 35 Cal.App.5th 134 [same]; see People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages]; but see Assem. Bill No. 927 (2019-2020 Reg. Sess.).) D. Resentencing on Prior Serious Felony Enhancements
Dunsmore contends that we should remand the case for resentencing to permit the trial court to consider striking the prior serious felony conviction (§ 667, subd. (a)(l)) in light of Senate Bill No. 1393, which was effective January 1, 2019. Senate Bill No. 1393 is retroactive to cases not final on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308; People v. Garcia (2018) 28 Cal.App.5th 961, 972.)
On September 30, 2018, the Governor signed Senate Bill No. 1393 which, on January 1, 2019, amended sections 667, subdivision (a) and 1385, subdivision (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) --------
Respondent agrees that the new law is retroactive to cases that were not final when the law was made effective, but contends that judgment and conviction were final for all purposes except for the imposition of mandatory fees, and thus the custodial part of the sentence was final. We disagree.
Under our determinate sentencing law, the judgment is composed of an aggregate of all the terms, principal and subordinate, along with any punitive fines, that are added into an interlocking judgment. (People v. Rosas (2010) 191 Cal.App.4th 107, 117 (Rosas).) Fines are not severable from other sentencing issues. (See ibid.) When a judgment is reversed and remanded for resentencing, the trial court can alter the sentence in reimposing the same aggregate punishment. (Id. at p. 112.) Rosas is the obverse of this case: in Rosas, the case was remanded for correction of errors in the custodial terms of the sentence. The trial court on remand reduced the amounts of the restitution and parole revocation fines. The appellate court rejected the Attorney General's argument that the trial court had no jurisdiction to reduce fines because the fines were not reversed on appeal. The Rosas court concluded that the fines were not a severable part of judgment, subject to the rule that they were final because they had not been challenged in the opening brief. The trial court had jurisdiction to lower the fines on resentencing following remand because the felony sentence was an interlocking, integrated whole. (Id. at p. 120.)
" 'When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. . . .' " (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.) Dunsmore can seek the benefit of the ameliorative change in the law that occurred in 2018. (See also Ramirez, supra, 35 Cal.App.5th at p. 64 [new ameliorative law applicable to case remanded for reconsideration of sentence].)
It is a close issue whether a trial court would exercise its discretion to reduce Dunsmore's sentence, due to the violence in this case and Dunsmore's lengthy history of violence. We cannot say with certainty, however, that the trial court clearly expressed on the record that it would not provide any discretionary benefit to Dunsmore. Remand is appropriate when the trial court does not clearly indicate what the trial court would have done had it been aware of the full scope of its discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
The sentence in this case is not yet final, therefore, we direct the trial court on remand to consider its discretion with regard to striking the five-year penalty for having a prior serious felony conviction, under section 667, subdivision (a)(1). E. Other Sentencing Errors
We address discrepancies in the 2019 AAJ that were pointed out by the CDCR.
1. Use of a Deadly Weapon Enhancement - § 12022, subdivision (b)(1)
In a letter dated May 28, 2019, the CDCR stated that the AAJ showed no time was imposed on an enhancement for use of a deadly weapon (§12022, subd. (b)(1)) in connection with count 1. The AAJ shows that the total time of four years was imposed on the enhancements for great bodily injury and for use of a weapon.
At sentencing in 2010, the trial court stated that in conjunction with count 1 it was imposing an enhancement of one year for use of a weapon "pursuant to [section] 12022 [subd.] (b)(1)." The verdict forms signed by the jury, however, found true allegations in connection with all three counts that Dunsmore "personally used a deadly or dangerous weapon, a vehicle, within the meaning of Penal Code section 1192.7(c)(23)." Section 1192.7, subdivision (c) identifies the crimes that are a "serious felony" as used in the penal sentencing scheme, including "any felony in which the defendant personally used a dangerous or deadly weapon." (§ 1192.7, subd. (c)(23).) Section 1192.7 does not impose any additional punishment and therefore cannot serve as a basis for an enhanced sentence.
Additionally, in connection with the finding that Dunsmore was not guilty of attempted murder, the jury found the weapon allegation under section 12022, subdivision (b)(1) to be not true. This is an additional reason for reversing the true findings on weapon enhancements.
On June 20, 2019, the trial court ordered further proceedings to address the sentence. It determined that the count 1 weapon enhancement was not authorized because the jury found the deadly weapon use allegation to be not true. The trial court stated it would conduct separate proceedings to address this unauthorized sentence and would issue an amended abstract of judgment. We agree that the enhancement was not authorized. If the trial court has not already done so, we direct the trial court on remand to strike the one-year weapon enhancement on count 1, and to correct the total term for the enhancement on count 1 to three years.
The sentencing court in 2010 also imposed a one-year term for the weapon enhancement on count 2, stayed pursuant to section 654, and a one-year term on count 3, punishment stayed pursuant to section 1385. The court filed a minute order the next day amending the judgment nunc pro tunc to strike the weapon enhancement on count 2. Neither of these enhancements are shown on the AAJ. Weapon enhancements are not authorized on counts 2 and 3 for the same reasons applicable to count 1. Additionally, both counts 2 and 3 charged assault with a deadly weapon. Section 12022, subdivision (b)(1) does not apply when "use of a deadly or dangerous weapon is an element of [the] offense." (§ 12022, subd. (b)(1); People v. Brunton (2018) 23 Cal.App.5th 1097, 1107.) To the extent they remain part of the judgment, we direct the trial court to strike the weapon enhancements on counts 2 and 3.
2. Count 2 Sentence
The AAJ shows imposition of the upper term on count 2, assault with a deadly weapon on the victim of the attempted manslaughter. The trial court should amend the abstract to show that the upper term was stayed on count 2. Similarly, the AAJ shows that the sentence on the great bodily injury enhancement was stayed, but not that a term of three years was imposed before it was stayed. This, too, should be corrected.
3. Count 3 Sentence
The court imposed a consecutive sentence of two years—one-third of the middle term, doubled for the prior strike conviction—on count 3. The AAJ incorrectly shows that the two-year term was concurrent. We direct the trial court to issue an amended abstract of judgment showing that this term was "1/3 consecutive."
4. Prior Prison Term Enhancement
At sentencing, the trial court imposed one year for the prior prison term conviction (§ 667.5, subd. (b)), and stayed it pursuant to Jones, supra, 5 Cal.4th at page 1153. Jones requires that one-year enhancement be stricken, not stayed, when the court imposes an enhancement under section 667. (Ibid.) This enhancement is not included on the AAJ. To the extent it is part of the judgment, we strike this enhancement.
DISPOSITION
We reverse the postjudgment order and remand to the trial court with directions to exercise its discretion about imposition of the five-year enhancement for a prior serious felony conviction (§ 667, subd. (a)(1)) and to accordingly stay, strike or let remain that enhancement; to modify the judgment by reducing the restitution fine (§ 1202.4, subd. (b)) and parole revocation fine (§ 1202.45) to $200 each; to impose the correct court operations assessment (§ 1465.8) of $120; to strike the weapon enhancement added to count 1 and correct the AAJ to reduce the total time imposed on the great bodily injury enhancement to three years, not four years; to correct the AAJ to show that the term on count 2 was stayed pursuant to section 654 and a three year term was imposed on the great bodily injury enhancement before it was stayed; to correct the AAJ to show the sentence on count 3 was a consecutive term of one-third the middle term, doubled; to hear and consider any other objections to the sentence, fines and fees; and to issue a corrected amended abstract of judgment and forward it to the CDCR.
BENKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.
The minimum fine was subsequently increased to $300, but we do not apply the higher current minimum because the restitution fine is punitive as we discuss. (People v. Hanson (2000) 23 Cal.4th 355, 361 (Hanson).)