Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F07141
RAYE, J.A jury convicted defendant George Mims of first degree murder (Pen. Code, § 187, subd. (a)—count one) and, in connection with that charge, found true the allegation he personally and intentionally discharged a firearm (§ 12022.53, subd. (d)) and the special circumstance that defendant intended to kill the victim when he fired the gun from his car (§ 190.2, subd. (a)(21)). The jury also convicted defendant of unlawful possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)—count two). Thereafter, the trial court found true allegations defendant had two prior strike convictions for assault with a firearm.
All further statutory references are to the Penal Code.
Sentenced to life without the possibility of parole on the murder conviction, 25 years to life on the firearm discharge enhancement (to be served consecutively), and 25 years to life on the firearm possession charge (also to be served consecutively), defendant raises three contentions on appeal, all of which are unrelated to the jury’s finding of guilt or the prison sentence imposed. He contends he should have received credit for the 111 days he served in presentence custody; he should not have been ordered to pay a $10,000 parole revocation restitution fine (§ 1202.45) because he will not be eligible for parole and his sentence did not include a determinate term; and the abstract of judgment should be amended to accurately reflect the sentence. The People concede all three errors.
We agree the court erred in these three minor respects; we shall order the errors corrected and otherwise affirm the judgment.
DISCUSSION
I. Defendant is Entitled to Presentence Custody Credit
The probation report reflects that defendant’s “total raw unsentenced” time served pursuant to section 2900.5 was 111 days. On the same page, the probation officer checked the box marked “2933.2(c) P.C. Mandates no time credits for murder convictions.” The minute order of defendant’s sentencing bears the notation “Credits: none for murder,” and the abstract of judgment reflects defendant received no presentence custody credit.
Defendant contends, and the People concede, the trial court erred when it denied him 111 days of presentence custody credit pursuant to section 2900.5, because section 2933.2 prohibits only conduct credit and not custody credit. They agree defendant is entitled to full credit for every day served in custody under section 2900.5. (People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.)
We accept the People’s concession of the error. Defendant must be given credit for the undisputed 111 days of presentence custody time he served. We shall order the abstract of judgment to be corrected to reflect such credit under section 2900.5.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was convicted of a serious or violent felony. (§ 4019, subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
II. No Parole Revocation Restitution Fine Should Be Imposed
Defendant contends the parole revocation fine of $10,000 under section 1202.45 must be stricken because such a fine is unauthorized when a sentence of life without the possibility of parole is imposed (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186) and no determinate term was otherwise imposed (People v. Brasure (2008) 42 Cal.4th 1037, 1075).
Section 1202.45 provides, in pertinent part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” This parole revocation fine must be suspended unless and until parole is revoked. (§ 1202.45.)
We accept the People’s concession of error and agree the fine was improper. We shall order it stricken from the abstract of judgment.
III. The Abstract Should Be Corrected to Reflect the Sentence Imposed
The parties agree the abstract of judgment needs to be corrected in two respects.
First, in part 6, box c, the abstract indicates a term of “50 years to Life on counts 1 - allegation & count 2... PLUS enhancement time shown above.” This presumably refers to the 25 years to life firearm enhancement imposed under section 12022.53, subdivision (d), and the 25 years to life “three strikes” sentence imposed for defendant’s conviction in count two for having possessed a firearm as a convicted felon. But by checking box c, the abstract has the effect of double counting defendant’s firearm enhancement, which (with its 25-years-to-life sentence) is already properly reflected in part 2. Accordingly, in part 6, box b should be checked instead of box c, and a notation added that it reflects the 25-years-to-life sentence imposed in count two.
Also, the court ordered defendant to pay $7,500 In restitution to the Victims of Violent Crime Program. However, part 9.a. of the abstract of judgment lists this amount as a restitution fine under section 1202.4, subdivision (b). The $7,500 restitution order should have been noted in part 9.b. as restitution under section 1202.4, subdivision (f), with the “Restitution Fund” box checked.
DISPOSITION
The convictions are affirmed. The abstract of judgment shall be amended in accordance with this opinion; as so amended, the judgment is affirmed. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J. BUTZ, J.