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The People v. Michael Allen Harvey


February 23, 2011


(Super. Ct. No. 08F4216, 07F3995)

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

P. v. Harvey



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After defendant Michael Allen Harvey, Sr., was convicted of manslaughter, his probation was revoked and he was sentenced to prison. On appeal, defendant contends he is entitled to additional custody credits, and that the trial court erred in imposing an additional restitution fine and in failing to identify each fine and fee imposed and its statutory basis. His contentions have merit, and we shall order the abstract of judgment amended.


In light of this appeal's limited focus, the circumstances underlying defendant's various convictions and his numerous violations of probation are irrelevant. We therefore omit any description of them.

In 2007 defendant pled no contest in case No. 07F3995 (case 3995) to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and received Proposition 36 probation. He was ordered to pay a restitution fine of $200 plus a 10 percent administrative fee, and a stayed probation revocation fine in the same amount.

In 2008 he pled guilty in case No. 08F4216 (case 4216) to transporting methamphetamine; admitted allegations he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)); admitted having three prior drug abuse convictions (Health & Saf. Code, § 11370.2); and admitted having violated his probation in case 3995. Defendant again received Proposition 36 probation. He was ordered to pay a restitution fine of $200 plus a 10 percent administrative fee, and a stayed parallel probation revocation fine.

In 2009 a jury found defendant guilty of misdemeanor manslaughter, and the court found defendant had violated his probation in cases 3995 and 4216.

The court chose the term imposed in case 4216 as the principal term, and sentenced defendant to 16 years: the aggravated term of four years for transporting methamphetamine in that case, plus one year for each of the three prison term enhancements (Pen. Code, § 667.5), plus three years for each of his three prior drug abuse convictions (Health & Saf. Code, § 11370.2). To that sentence, it added a one-year sentence on case 3995 (one-third the midterm), for a total aggregate prison sentence of 17 years.

At sentencing, the court said little about fines or fees. It ordered defendant to pay $400 in previously stayed probation revocation fines and then said, "So $400 for an additional $3,400 restitution fine, that will be suspended unless parole is revoked. Also restitution in the amount of $200, court security fee, all the previous ordered fines are imposed.

"The Clerk: There is reference in the probation report to a criminal conviction assessment of $20 pursuant to Government Code section [70373], those were not originally imposed and they should be stricken.

"The Court: Those will be stricken. So the remainder of what's been previously ordered will remain in place as an order of the Court." The court also awarded defendant 265 days of custody credit and 132 days of conduct credit.

In contrast to the court's statements from the bench, the minute order from the sentencing hearing indicates, as to both case 4216 and case 3995, that "[t]he court, having previously ordered the defendant to pay a restitution fine of $200.00 pursuant to Penal Code Section 1202.4 plus a 10% administrative fee pursuant to Section 1202.4(l) of the Penal Code, the court now orders, an additional restitution fine in the amount of $200.00, which shall be suspended unless defendant's parole is revoked pursuant to Penal Code section 1202.45." The minute order of the sentencing proceeding sets out in detail the component fines and fees comprising a total fine of $650 in each of the two cases and the statutory basis for each component.

The abstract of judgment reflects restitution fines and parole revocation fines of $200. It also indicates that in each of the two cases, defendant is ordered to "[p]ay a fine of $650.00 (see breakdown in minute order)."

DISCUSSION I. Defendant is Entitled to Additional Conduct Credits

Defendant first argues that amendments to Penal Code section 4019, effective January 25, 2010 (Sen. Bill No. 3X 18; Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50), apply retroactively to his pending appeal and entitle him to additional presentence credits. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]); People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (Sen. Bill No. 76), which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Pen. Code, § 2933, subd. (e)(1), (2), (3), as amended by Sen. Bill No. 76, § 1; Stats. 2010, ch. 426, § 1.) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 when the person served an odd number of days in presentence custody, and it eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 2; see Pen. Code, § 4019, subd. (g).)

The amendments effective September 28, 2010, which now supersede the amendment effective January 25, 2010, do not state they are to be applied prospectively only. Consequently, for the reasons we concluded the amendment increasing the rate of earning presentence conduct credit effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in Penal Code section 2933 applies retroactively to all appeals pending as of September 28, 2010.

Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], § 2933 [as amended by Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010].)

Defendant, having served 265 days of actual presentence custody, is therefore entitled to 265 days of presentence conduct credit. We modify the judgment to award defendant those credits.

II. A Restitution Fine of $3,400 was Erroneously Imposed

Defendant contends the court erred in imposing "an additional $3,400 restitution fine" at sentencing after it had previously imposed restitution fines of $200 in both cases 3995 and 4216 when probation was granted.

Defendant's argument is based primarily on this court's opinion in People v. Chambers (1998) 65 Cal.App.4th 819. In Chambers, "the trial court imposed a $200 restitution fine when it granted the defendant probation, but it also imposed a $500 restitution fine later when the defendant's probation was revoked." (Id. at pp. 820-821.) This court held "[t]here is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken. [Citation.]" (Id. at p. 823.)

The People agree that the trial court's original imposition of two $200 restitution fines survives probation revocation, and its imposition of any additional restitution fine after defendant's probation was revoked would be error. We agree, and since this is what the trial court did, we shall strike the court's order that defendant pay a restitution fine of $3,400.

We note, however, that the abstract of judgment instead reflects the proper imposition of two $200 restitution fines (Pen. Code, § 1202.4), and two parallel parole revocation fines (Pen. Code, § 1202.45). The abstract of judgment need not be amended to correct the court's erroneous imposition of restitution fines from the bench.

III. The Abstract of Judgment Must State Statutory Basis of Each Fine, Fee, and Penalty

The trial court did not identify the statutory bases of various fines and fees from the bench at sentencing, nor does the abstract of judgment identify them. The parties agree the matter must be remanded for the trial court to correct this omission.

We agree. The abstract of judgment or order of probation filed by the trial court must "separately list, with the statutory basis, all fines, fees and penalties imposed." (People v. High (2004) 119 Cal.App.4th 1192, 1201.) The abstract of judgment here purports to incorporate the description of fines and fees imposed as contained in the minute order. This is not sufficient. (Id. at p. 1200 ["If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency"]; see People v. Eddards (2008) 162 Cal.App.4th 712, 717.)

We shall direct the trial court to prepare an amended abstract of judgment specifying the statutory basis for every fine and fee.


The judgment is modified to award defendant 265 days of conduct credit and to strike the $3,400 restitution fine. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects the conduct credit award and separately lists, with the statutory bases, all fines, fees, and assessments imposed in case 4216 and case 3995. The trial court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: NICHOLSON, J. BUTZ , J.


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