PEOPLE v. PARKER

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

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

No. B119466.

Decided: October 13, 1998

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.

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 are primarily the responsibility of the sentencing court, and of the prosecutor.   A prosecutor's mission includes both obtaining a conviction consistent with justice, and assuring that a correct lawful sentence is imposed.   Prosecutors must take care to explicitly request all particulars of appropriate relief at sentencing hearings, to monitor minute orders and abstracts of judgment to make sure that sentences are recorded accurately and completely, and where they are not, to request the trial court to correct erroneous orders.

 In this case, we will simply correct the judgment and impose the additional fine.   However, we warn that in the future we will decline to address these issues at the appellate level, where counsel have not first requested correction of the judgment and abstract in the trial court.   (People v. Wrice (1995) 38 Cal.App.4th 767, 773, 45 Cal.Rptr.2d 193.)

DISPOSITION

The judgment is modified to impose an additional $200 fine, to remain suspended unless and until appellant violates parole. The judgment is also modified to award appellant 355 days of Penal Code section 2900.5 credit, consisting of 237 days of custody credit and 118 days of conduct credit. The judgment is affirmed as modified. The court shall cause its clerk to prepare an amended abstract of judgment stating the restitution fines imposed under Penal Code section 1202.4 and 1202.45 and the award of precommitment credit.

NEAL, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.