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The People v. Long Phi Le

December 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LONG PHI LE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 92F11292)

The opinion of the court was delivered by: Mauro , J.

P. v. Le

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Long Phi Le of first degree premeditated murder and found that he personally used a firearm to commit the offense. This court previously remanded the case and directed the trial court to redetermine victim restitution and the restitution fine. Applying the law in effect at the time of defendant's crime, this court specified that "[f]or any restitution fine imposed, the trial court must consider defendant's ability to pay, which may include defendant's 'future financial prospects.'" This court also said that "[i]f the trial court makes a determination of the amount of victim restitution, defendant shall have the right to a hearing before the judge to dispute the determination made."

Despite these instructions, the trial court redetermined restitution and the restitution fine in defendant's absence and without considering defendant's ability to pay. Defendant now contends that the trial court failed to follow this court's directions and that he had a right to be present at the restitution hearing. The People agree, and so do we.

We will remand the matter again.

BACKGROUND

Given defendant's narrow contentions on appeal, it is not necessary to provide a detailed recitation of the facts leading to defendant's conviction. Defendant shot and killed the victim during a dispute between defendant's friends and the victim's friends. A jury convicted him of first degree premeditated murder and found that he personally used a firearm to commit the offense.

In defendant's first appeal, this court reversed the judgment due to instructional error. (People v. Le (Dec. 29, 2005, C047537) 2005 WL 3549439 [nonpub. opn.].) On retrial a jury convicted defendant again of the same offense. At sentencing, defense counsel contested defendant's ability to pay the restitution fine and victim restitution as recommended in the probation report. But the trial court observed that the recommended amounts were the same as those imposed following the first trial. The trial court said that because this court did not identify any error regarding those amounts, it would "impose the same fines that were imposed previously." The trial court ordered defendant to pay a restitution fine of $10,000, and restitution of $3,500 to the victims of violent crime program pursuant to Penal Code section 1202.4.*fn1 The trial court also ordered defendant to pay restitution to the victim's family in an amount to be determined.

Defendant appealed, contending, among other things, that the combined amount of the restitution fine and victim restitution could not exceed $10,000, and that the trial court erred in failing to consider his ability to pay.

This court applied the restitution statutes in effect at the time of defendant's crime in 1992. This court observed that "'[i]n imposing a restitution fine, the trial court must consider a defendant's ability to pay. However, the trial court is not limited to a consideration of a defendant's present ability to pay but may consider defendant's ability to pay in the future.' [Citation.]" This court concluded that "the restitution fines of $10,000 and $3,500, as well as the victim restitution in the undetermined amount, must be stricken, and the matter remanded for the trial court to determine an appropriate restitution fine and/or victim restitution. If the victim restitution is determined to be $10,000 or more, the 'in lieu of' language of former Government Code section 13967, subdivision (c), will reduce the maximum allowable restitution fine of $10,000 to zero. [Citation.] If the victim restitution is determined to be under $10,000, the trial court may impose a restitution fine and victim restitution that does not exceed the sum of $10,000. [Citation.] For any restitution fine imposed, the trial court must consider defendant's ability to pay, which may include defendant's 'future financial prospects.' [Citation.] If the trial court makes a determination of the amount of victim restitution, defendant shall have the right to a hearing before the judge to dispute the determination made." We remanded the case with directions to redetermine the restitution fine and/or the victim restitution in accord with these statements in our opinion. (People v. Le (Sept. 10, 2009, C057628) [nonpub. opn.] 2009 WL 2902078.)

Defendant was not present at the new restitution hearing but was represented by counsel. The trial court stated that "[t]he only question is the actual restitution. The probation report indicated that the probation officer was unable to successfully make contact with the [victim's] family, so the only restitution they noted was the previously mentioned $3,500. So I'm prepared just to order that restitution." The trial court said "that would leave $6,500 that I can impose as the restitution fine, so that together they do not exceed the sum of $10,000." ...


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