People v. Parker

• Decision Date: 13 October 1998
• Docket Number: No. B119466,B119466
• Citation: 78 Cal.Rptr.2d 868,67 Cal.App.4th 200
• Parties: Previously published at 67 Cal.App.4th 200 67 Cal.App.4th 200, 98 Cal. Daily Op. Serv. 7777, 98 Daily Journal D.A.R. 10,773 The PEOPLE, Plaintiff and Respondent, v. Melvin Andrew PARKER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 868

78 Cal.Rptr.2d 868

Previously published at 67 Cal.App.4th 200

67 Cal.App.4th 200, 98 Cal. Daily Op. Serv. 7777,

98 Daily Journal D.A.R. 10,773

The PEOPLE, Plaintiff and Respondent, v. Melvin Andrew PARKER, Defendant and Appellant.

No. B119466.

Court of Appeal, Second District, Division 7, California.

Oct. 13, 1998.

As Modified Oct. 26, 1998.

As Modified on Denial of Rehearing Nov. 12, 1998.

Review Granted Feb. 24, 1999.

[67 Cal.App.4th 201] Joseph T. Tavano, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

NEAL, Associate Justice.

Melvin Andrew Parker was convicted by jury of robbery and felonious assault after he and an accomplice violently assaulted the victim in order to steal her purse. Appellant had numerous prior serious and violent felony convictions. He was sentenced as a Three Strikes offender to a term of twenty-five years to life in state prison.

The trial court imposed a $200 restitution fine as required by Penal Code § 1202.4, but imposed no other fines or penalties. The victim did not testify concerning how much money, if any, was taken from her, nor the value of the purse and other non-monetary items taken, nor did she appear to give evidence at the sentencing hearing. The probation report is silent on these subjects.

Appellant does not contest his conviction, but contends that the court made errors in the calculation of his precommitment credits. The People complain that appellant's sentence was unauthorized because the court failed to impose direct restitution, the parole violation fine and penalties.

Appellant has requested correction of the conduct credit he was awarded. The court computed conduct credit at 15 per cent under Penal Code section 2933.1. The current offenses are not "violent" felonies within the meaning of Penal Code section 2933.1. (People v. Henson (1997) 57 Cal.App.4th 1380, 1389, 67 Cal.Rptr.2d 734.) Appellant was entitled to precommitment credit calculated at a ratio of two-for-four under Penal Code section 2900.5. We will modify the judgment to award appellant 355 days of Penal Code section 2900.5 credit, consisting of 237 days of custody credit and 118 days of conduct credits.

Nor did the trial court err when it imposed no penalty assessments on the restitution fine. Penalty assessments on restitution fines are specifically forbidden by Penal Code section 1202.4, subdivision (e).

An order for direct restitution was not required since the record contains no evidence that the victim suffered any economic loss, or the quantum of such loss. (Pen.Code, § 1202.4, subd. (f).)

We agree with respondent's contention that the trial court was required to impose a suspended $200 "parole violation" restitution fine (Pen. Code § 1202.45.) We acknowledge that it is within our power to correct this omission on appeal. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1522-1523, 77 Cal.Rptr.2d 492.)

We have a cautionary word, however. Lately, we have received a number of requests by the People to correct omissions by the trial court in ordering or failing to order restitution, restitution fines, laboratory fees and penalty assessments, or in communicating its orders concerning these matters to the Department of Corrections.

These omissions...