Filed 1/27/15 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. HIEN TRI NGUYEN, Defendant and Appellant. H040509 (Santa Clara County Super. Ct. No. C1235177)



### I. INTRODUCTION $240 was the minimum restitution fine fo r a felony conviction under Penal Code section 1202.4, subdivision (b)(1) 1 in 2012 when defendant Hien Nguyen attempted to murder a coworker at a build ing supply store by clubbing hi m once in the back of the head with a drywall hammer. The resulting ch arges were resolved by a plea agreement. There was no objection at the change of plea hearing wh en the trial court advised defendant that he would be subject to vari ous fines and fees, including “a restitution fund fine in the minimum amount of $264 an d a maximum of $10,000.” There was no objection at the sentencing hearing when the trial court imposed “the minimum. It’s going to be $264,” even though defense coun sel had just identified the minimum fine as $240. We may assume defense counsel and the trial court had in mind that section

1 Unspecified section references are to the Penal Code.2 1202.4, subdivision ( l ) authorizes a county to impose a fee of up to 10 percent for the actual administrative cost of collecting a rest itution fine, in other words, up to $24 for each $240 collected fo r a total of $264. On appeal defendant contends that his re stitution fine should be $240, and it was ineffective of defense counsel not to say so . The Attorney General responds that the objection was forfeited and that there may have been a tactical reason for not objecting. Because no error by the trial court or defe nse counsel appears, we will affirm the judgment. 

### II. TRIAL COURT PROCEEDINGS According to testimony at the preliminar y examination, the charges were based on the following conduct. While wo rking at a building supply st ore in June 2012, defendant appeared unusually serious to his supervisor, who inquired an d was told by defendant that a coworker, Angel Dominguez Jr., had scolded him or told him off. Dominguez worked at the sales counter, while defendant was a stocker and runner. The supervisor told defendant not to be upset, he would talk to the manager about it. At the end of defendant’s shift, he clocked out, retrieve d an 18-inch drywall hammer from his car, and
returned to the store. Around 4 p.m., a customer noticed de fendant walking quick ly in the store expressionless and carrying a tool. The cust omer lost sight of defendant behind the counter for a moment. He reappeared be hind Dominguez, who was at the counter working on a computer. Defendant, with an angry expression, held the hammer in both hands and swung it like a baseball bat, striki ng Dominguez once in th e back of the head and knocking him bleedin g to the ground. Defendant remained in the area until the police arrived. The incident was recorded on video-camera. Dominguez had seizures while being transported to the hospital. He survived and wa s hospitalized for five days with no recollection of the attack or the seve ral days following it. He has a six or seveninch scar on his head and was unab le to work for several months.3 Defendant was charged with attempted pr emeditated murder (count 1, §§ 664, 187, 189) and personal use of a dangerous or deadly weap on (§§ 12022, subd. (b)(1), 667, 1192.7) to inflict great bodily injury (§ 12022.7, subd. (a)). He was also charged with assault with a d eadly weapon. (Count 2, § 245, subd. (a)(1).) He was alleged to have a prior serious felony conviction for lewd and lascivious acts. (§§ 667, subd. (a); 667, subds. (b)-(i); 1170.12.) In July 2013, defe ndant agreed to reso lve the case by pleading no contest to attempted murder and by admitting he inflicted great bodily in jury by personal use of the hammer. He also admitted the prior seriou s felony conviction. The allegations of premeditation and assault with a deadly we apon would be dismissed at sentencing. Before defendant entered his no contest plea, he was advised of and waived his trial rights. The trial court explained that he would be subject to various fines and fees, including “a restitution fund fine in the minimum amount of $264 and a maximum of $10,000.” No written plea form appears in the record on appeal. The probation officer recommended a pris on sentence of 23 years (the midterm sentence of seven years doubled plus five ye ars for the serious felony conviction, three years for personal infliction of great bodily injury, and one year for personal use of a dangerous weapon). Also reco mmended were: a court security fee of $40, a criminal conviction assessment of $30, a criminal just ice administration fee of $129.75 to the City of San Jose, a restitution fine of $5,520 “u nder the formula permitted by Penal Code section 1202.4(b)(2)” 2 and an equivalent parole revoca tion fine suspende d under section
1202.45.

2 Section 1202.4 provides in relevant 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. (Continued)4 Defendant moved to strike his strike conviction under People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, to which the prosecution filed writte n opposition. At the sentencing hearing, the court denied the Romero motion and sentenced defendant to 19 years in prison, consisting of the lower te rm of five years doubled due to the prior strike, plus the nine years of enhancem ents recommended in the probation report. Defendant was awarded presente nce custody credits of 515 actual days plus 77 conduct credits. (§ 2933.1.) Defendant stipulated to victim restitution of $1,296.98. The court initially imposed a restitution fine of $5,520 as recommended in the probation report, but defense counsel pointed out the total would have to be recalculated based on the lower sentence. The prosecutor asked to reduce the fine to $280, “the
minimum restitution fund fine in this case” because defendant would be in prison for a long time and also had victim restitution to pay. Defense counsel stated, “The minimum is $240, Your Honor. The total for 19 years is $4,560.” The court stated, “I think in
these circumstances it’s unrea listic he would even be able to pay that amount so I’m

“(1) The restitution fine shall be se t at the discretion of the court and commensurate with the seriousness of the offens e. If the person is convicted of a felony, the fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) star ting on January 1, 20 13, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000). ... “(2) In setting a felony restitution fine , the court may determine the amount of the fine as the product of the minimum fine pursuant to paragrap h (1) multiplied by the number of years of imprisonment the defenda nt is ordered to serve, multiplied by the number of felony counts of whic h the defendant is convicted. “[¶] ... [¶] “( l ) At its discretion, the board of supe rvisors of a county may impose a fee to cover the actual administrative cost of colle cting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of wh ich shall be deposited in the general fund of the county.”5 going to impose the minimum. It’s going to be $264.” There was no objection. The court imposed the other fees, fines, and assessments as recommended in the probation report. 

### III. ANALYSIS Since 1996, section 1202.4 has included a discretionary formula for calculating the mandatory restitution fine. The provision fo r actual collection co sts not exceeding 10 percent has been part of the statute since 1988 . (Stats. 1988, ch. 975, § 1, p. 3152; former Gov. Code, § 13967, now § 1202.4, subd. ( l ).)
Because defendant’s crime occurred in 2012, the minimum restitution fine was $240. Restitution fines are considered punish ment and therefore subject to the ex post facto clause ( People v. Souza (2012) 54 Cal.4th 90, 143), which would prohibit imposing
a restitution fine in a minimum amount incr eased after the defendant’s offense. ( People v. Saelee (1995) 35 Cal.App.4th 27, 30-31; People v. Martinez (2014) 226 Cal.App.4th 1169, 1189.)
Defendant contends the tr ial court erred in imposing a “minimum” restitution fine of $264 rather than $240. Defendant acknowledges that he did not object to the amount of the fine in the trial court and thereby may have forfeited the claim on appeal. He argues in that event that hi s trial counsel was ineffectiv e for failing to object. The minimum statutory fine of $240 in th is case plus the 10 percent collection fee would total $264. While the trial court desc ribed the minimum fine as $264, it appears that the court was simply imposing a fine of $240 plus the authorized 10 percent collection fee, both under the same statute. (§ 1202.4.) Secti on 1202.4, subdivision ( l ) requires that the collection fee “be added to the restitution fi ne and included in the order of the court ... .” Here, the 10 percent fee is not duplicated elsewhere in the clerk’s minute order or the abstract of judgment. Although we acknowledge that any ambiguity is avoided when the court states and the cler k records the restitution fine and collection fee separately, we conclude on this record that it was not error to combine the two6 amounts in a single figure. In view of this conclusion, defendant’s claim of his counsel’s ineffectiveness is moot. 

### IV. DISPOSITION The judgment is affirmed.__________ _______________ ___________ Grover, J.

WE CONCUR:

________________ _________________ Bamattre-Manoukian, Acting P.J.

________________ _________________ Mihara, J.