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People v. Harvey

California Court of Appeals, Second District, Fifth Division
Apr 21, 2009
No. B209076 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA333282, John S. Fisher, Judge. (Retired judge of the L.A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) .

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.


TURNER, P. J.

Defendant, Randy Kirk Harvey, appeals from a judgment of conviction following a guilty plea. Defendant was charged with felony child abuse in violation of Penal Code section 273a, subdivision (a) and corporal injury to a child in violation of Penal Code section 273d, subdivision (a). (All further statutory references are to the Penal Code except where otherwise noted.) It was further alleged as to each count that defendant personally used a deadly and dangerous weapon, a glass bottle. (§12022, subd. (b)(1).) Additionally, defendant was alleged to have been twice convicted of robberies. (667, subds. (b)-(i); 667, subd. (a)(1), 1170.12, subds. (a)-(d).) Defendant pled guilty to felony child abuse and admitted one of two alleged prior convictions—a July 27, 1987 conviction in case No. NA953539. The remaining count and special allegations were dismissed. Defendant was sentenced to four years in state prison. He was ordered to pay a: $200 restitution fine (§ 1202.4, subd. (b)); $200 parole revocation restitution fine (§ 1202.45); a $20 court security fee (§ 1465.8, subd. (a)(1)); and a $20 deoxyribonucleic acid penalty. (Gov. Code, §§ 76104.6, subd. (a) or 76104.7, subd. (a).) He was granted credit for 141 days in custody plus 70 days of conduct credit for a total presentence custody credit of 211 days. On February 3, 2009, appointed appellate counsel asked the trial court to correct defendant’s presentence custody credits to reflect 153 days in custody plus 76 days of conduct credit for a total of 229 days.

We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On February 3, 2009, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider.

On June 6, 2008, defendant filed a letter in which he asserted: ineffective assistance of counsel at the preliminary hearing; ineffective assistance of trial counsel in advice regarding the plea; and that it was error or an abuse of discretion to rely on a “strike” that was over 20 years old. These issues go to the validity of defendant’s plea and cannot be raised absent issuance of a probable cause certificate. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Panizzon (1996) 13 Cal.4th 68, 76; People v. Cole (2001) 88 Cal.App.4th 850, 867; People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)

The trial court did not impose and there was no basis for imposing a section 667, subdivision (a)(1) five-year enhancement for a prior serious felony conviction because the present conviction was not of a serious felony. Only if the trial court had found true, rather than dismissing, the section 12022, subdivision (b)(1) personal use of a deadly and dangerous weapon allegation would the present conviction have been a serious felony conviction. (§ 1192.7, subd. (c)(23).)

We asked the parties to brief the question whether it was error to impose a deoxyribonucleic acid penalty. As noted above, defendant was ordered to pay a $20 deoxyribonucleic acid penalty. (Gov. Code, §§ 76104.6, subd. (a), 76104.7, subd. (a).) This was an error. No Government Code section 76104.6, subdivision (a) deoxyribonucleic acid penalty or Government Code section 76104.7, subdivision (a) state-only deoxyribonucleic acid penalty can be imposed on any restitution fine (Gov. Code, §§ 76104.6, subd. (a)(3)(A), 76104.7, subd. (c)(1)) or on a section 1465.8, subdivision (a)(1) court security fee. (People v. Valencia (2008) 166 Cal.App.4th 1392, 1395-1396.)

We also asked the parties to brief the question whether defendant is entitled to additional presentence custody credit. As noted above, the trial court awarded defendant 141 days of actual custody credit plus 70 days of conduct credit for a total presentence custody credit of 211 days. On February 3, 2009, defendant’s appointed appellate counsel asked the trial court to correct defendant’s custody credits to reflect 153 days in custody plus 76 days of conduct credit for a total of 229 days. We have not been advised whether the trial court has ruled on defendant’s request. According to the record before us, defendant was arrested on December 6, 2007, and remained in custody until he was sentenced on May 6, 2008. He is entitled to credit for 153 days of actual presentence custody plus 76 days of conduct credit for a total of 229 days.

Finally, the abstract of judgment must be amended to reflect the trial court’s oral pronouncement of judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Morelos (2008) 168 Cal.App.4th 758, 768; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) As noted above, defendant was ordered to pay a $200 restitution fine under section 1202.4, subdivision (b) and a $200 parole revocation restitution fine under section 1202.45. The abstract of judgment, however, fails to reflect the $200 parole revocation restitution fine under section 1202.45. In addition, the reference to a $20 fine “pursuant to section 299.5 code” must be omitted. No such fine was imposed.

The judgment is reversed insofar as it imposes a $20 deoxyribonucleic acid penalty. (Gov. Code, §§ 76104.6, subd. (a) or 76104.7, subd. (a).) Additionally, the judgment is modified to award defendant credit for 153 days in presentence custody plus 76 days of conduct credit for a total presentence custody credit of 229 days. Upon remittitur issuance, the superior court clerk shall amend the abstract of judgment to conform to this decision and shall forward the amended abstract to the Department of Corrections and Rehabilitation. The trial court is to personally insure the abstract of judgment is corrected. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.) The judgment is affirmed in all other respects.

We concur: MOSK, J. KRIEGLER, J.


Summaries of

People v. Harvey

California Court of Appeals, Second District, Fifth Division
Apr 21, 2009
No. B209076 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Harvey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RANDY KIRK HARVEY, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Apr 21, 2009

Citations

No. B209076 (Cal. Ct. App. Apr. 21, 2009)