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The People v. Michael Allen Harvey

February 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL ALLEN HARVEY, SR., DEFENDANT AND APPELLANT.



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

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

P. v. Harvey

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After defendant Michael Allen Harvey, Sr., was convicted of manslaughter, his probation was revoked and he was sentenced to prison.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.

BACKGROUND

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 ...


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