Filed 7/1/13 P. v. Green CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062646
Plaintiff and Respondent,
v. (Super. Ct. No. SCD238807)
GLEN GREEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed as modified with directions.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa
Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
In August 2012, a jury found Glen Green guilty of pandering (Pen. Code, § 266i,
subd. (a)(2); count 1; all further statutory references are to the Penal Code) and pimping
(§ 266h, subd. (a); count 2). In September, the court sentenced him to three years in
prison: the three-year lower term for pandering and a stayed (§ 654) three-year lower
concurrent term for pimping. Green appeals, contending the court abused its discretion
and violated section 654's proscription against multiple punishment by relying on count
two in calculating the amount of the restitution fine. The People properly concede the
point.
In 2012, section 1202.4, subdivision (b) allows the court to calculate the amount of
the restitution fine by multiplying $240 "by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted." (§ 1202.4, subd. (b)(2) & (1).) When sentence on a count is
stayed pursuant to section 654, that count cannot be a part of the calculation. (People v.
Le (2006) 136 Cal.App.4th 925, 933-934.) Here, the court imposed a $1,440 restitution
fine, calculated as $240 times three (years) times two (counts). Because the sentence on
count two was stayed pursuant to section 654, the fine must be reduced to $720. The
parole revocation fine, which must be in the same amount as the restitution fine
(§ 1202.45), must also be reduced to $720. We need not discuss Green's contention that
trial counsel was ineffective in failing to object to the amount of the restitution fine.
DISPOSITION
The $1,440 restitution fine (§ 1202.4, subd. (b)) and the $1,440 parole revocation
fine (§ 1202.45) are each reduced to $720. As so modified, the judgment is affirmed.
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The trial court is directed to prepare an amended abstract of judgment reflecting the
modification and forward it to the Department of Corrections and Rehabilitation.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.
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