P. v. Sharif
Filed 4/26/13 P. v. Sharif CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ABDULAZIZ AHMED SHARIF,
Defendant and Appellant.
D061508
(Super. Ct.
No. SCD232282)
APPEAL from
a judgment of the Superior Court of San
Diego County, Leo Valentine, Jr., Judge.
Affirmed in part, reversed in part, and remanded with directions.
Following a
mistrial due to a deadlocked jury, a second jury found Abdulaziz Ahmed Sharif
guilty of unlawfully taking or driving a vehicle. At the sentencing hearing on March 5, 2012, the court placed Sharif
on three years of formal probation and suspended imposition of sentence for
that period of time, but committed him to the custody of the San Diego County
Sheriff's Department for 365 days. The
court imposed a total of $1,264 in fines, fees, and assessments, including a
restitution fine imposed under section Penal Code section 1202.4, subdivision
(b) (hereafter § 1202.4(b); undesignated statutory references are to the
was arrested on February 4, 2011, was entitled to a total of 594 days of credit
for time served in local presentence custody, consisting of 396 days of credit
for time actually served, plus 198 days of conduct credit under the former
version of section 4019 in effect when Sharif committed his offense the day
before he was arrested, and which allowed him to earn one day of conduct credit
for every two days he actually served
in local presentence custody.
Sharif
miscalculated his presentence custody credits and should have awarded him an
additional 78 days of conduct credit (for a total of 672 days of presentence
custody credit) because it erroneously failed to use a "hybrid"
calculation method he claims the court was required to use following the
October 1, 2011 operative date of an amendment to section 4019 that resulted in
a more favorable conduct credit accrual rate; (2) the court erred when it
failed to apply to his fines and fees, on a proportional basis and at the
statutory rate of not less than $30 per day of credit, the monetary credit
(discussed, post) resulting from the
excess of his total presentence custody credits over his 365-day jail term, as
required by section 2900.5, subdivision (a) (hereafter § 2900.5(a)); (3)
the $240 restitution fine imposed under section 1202.4(b) violates the ex post
facto clauses of the federal and state Constitutions because he committed the
current offense before January 1, 2012, the date when the amount of the fine
increased from $200 to $240; and (4) the court erred in imposing
alcohol-related conditions of probation because they are not reasonably related
to his offense or future criminality.
The
Attorney General concedes the court erroneously failed to apply to the fines
the monetary credit resulting from Sharif's excess presentence custody credits,
as required by section 2900.5(a).
We reverse
the judgment to the extent that the amounts of the base fines, penalty
assessments, and restitution fines the court imposed at sentencing have not
been reduced on a proportional basis by the monetary credit resulting from the
excess of Sharif's total presentence actual and good conduct custody credits
over his 365-day jail term, in accordance with the provisions of section
2900.5(a) and the methodology set forth in People
v. McGarry (2002) 96 Cal.App.4th 644 (McGarry).
We affirm the judgment in all other respects and remand the matter to the
superior court with directions.
FACTUAL
BACKGROUND
Early in
the evening on February 3, 2011,
Sharif got into a Cadillac at a Budget Rent-A-Car and drove away in it without
permission. The car was tracked by On
Star and recovered. A witness and surveillance
tapes identified Sharif, who was arrested the next day, February 4, after he
returned to the same rental car office.
At the time of his arrest, Sharif made a spontaneous statement
indicating he did not have the car key because the car had an automatic
start.
DISCUSSION
I. PRESENTENCE
CUSTODY CREDITS
Sharif
first contends the court miscalculated his presentence custody credits and
should have awarded him an additional 78 days of conduct credit (for a total of
672 days, not 594 days, of presentence custody credit) because it erroneously
failed to use a hybrid calculation method he claims the court was required to
use to calculate his credits for the presentence custody time he served on and
after October 1, 2011, the operative date of an amendment to section 4019 that
increased the conduct credit accrual rate from one day of conduct credit for
every two days actually
served─which the parties agree was the accrual rate that applied to the
presentence custody time he served from the time of his arrest on February 4,
2011, to October 1, 2011, the operative date of the statutory
amendment─to one day of conduct credit for every one day actually served.
Specifically, Sharif contends the court erroneously failed to apply this
more favorable one-for-one conduct credit accrual rate to the presentence
custody time he served between October
1, 2011, and the date of his sentencing in this matter, March 5, 2012. We reject these contentions and conclude the
court properly calculated Sharif's presentence custody credits.
A.
Amendments to Section 4019
1.
A defendant
is entitled to actual custody credit for "all days of custody" in
county jail and residential treatment facilities. (§ 2900.5, subd. (a); People
v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter) ["Everyone
sentenced to prison for criminal conduct is entitled to credit against his [or
her] term for all actual days of [presentence] confinement solely attributable
to the same conduct."].)
Calculation of custody credit begins on the day of arrest and continues
through the day of sentencing. (
729, 735.)
Under
section 4019, a defendant may also earn "conduct credit" (also known
as "good behavior" credits) against his or her sentence for good
behavior (i.e., compliance with rules and regulations) and satisfactory
performance of any labor assigned to him or her during presentence
custody. (§ 4019, subds. (b), (c); People v. Dieck (2009) 46
Cal.4th 934, 939, fn. 3; Buckhalter, supra,
26 Cal.4th at p. 30.)
The
California Supreme Court has explained that when a trial court imposes a
sentence, it "has responsibility to calculate the exact number of days the
defendant has been in custody 'prior to sentencing,' add applicable good
behavior credits earned pursuant to section 4019, and reflect the total in the
abstract of judgment." (Buckhalter, supra, 26 Cal.4th
at p. 30.)
Amendments to
Section 4019
Section
4019 has been amended in recent years, increasing or decreasing the rate at
which defendants can earn conduct credits while in presentence custody. The convoluted history of these amendments,
as pertinent here, was recently discussed in People v. Rajanayagam (2012) 211 Cal.App.4th 42 (
"Before
January 25, 2010, under
section 4019, defendants were entitled to one-for-two conduct credits, which is
two days for every four days of actual time served in presentence custody. [Citation.]
Effective January 25, 2010,
the Legislature amended section 4019 to accelerate the accrual of presentence
conduct credit such that certain defendants earned one-for-one conduct credits,
which is two days of conduct credit for every two days in custody. [Citation.]
The Legislature increased the accrual rate to reduce expenditures in
response to Governor Arnold Schwarzenegger's declaration of a fiscal
emergency. [Citations.]
"Effective
September 28, 2010, the
Legislature again amended section 4019. [Citation.] Subdivisions (b) and (g) restored the less
generous one-for-two presentence conduct credit calculation that had been in
effect prior to the January 25, 2010,
amendment. Thus, all local prisoners
could earn two days of conduct credit for every four days in jail. The Legislature restored the conduct credits
to one-for-two because the increased conduct credits reduced available jail
time and undercut the effort to provide an adequate custodial alternative to
prison. [Citation.]
"The
Legislature next amended section 4019 in Assembly Bill No.
109 . . . , which was part of the [Criminal Justice]
Realignment Act [of 2011]. The
Legislature's stated purpose for the Realignment Act 'is to reduce recidivism
and improve public safety, while at the same time reducing corrections and
related criminal justice spending.'
[Citations.] Assembly Bill No.
109 authorized conduct credit for all local prisoners at the rate of two days
for every two days spent in local presentence custody. (§ 4019, subds. (b) & (c), as amended by
Stats. 2011, ch. 15, § 482, eff. April
4, 2011, operative Oct. 1,
2011.) The Legislature declared, 'It is the intent of the
Legislature that if all days are earned under this section, a term of four days
will be deemed to have been served for every two days spent in actual custody.' (§ 4019, subd. (f), as amended by Stats.
2011, ch. 15, § 482.) Assembly Bill
No. 109 described its prospective nature and effective date of the new
presentence conduct credit calculations standards: 'The changes to this section enacted by the
act that added this subdivision shall apply prospectively and shall apply to
prisoners who are confined to a county jail . . . for a
crime committed on or after July 1, 2011.
Any days earned by a prisoner prior to July 1, 2011, shall be calculated at the rate required by
the prior law.'
[Citation.] . . . .
"Before
Assembly Bill No. 109's operative date of July 1, 2011, Governor Brown signed Assembly Bill No.
117[, which] retained the enhanced conduct credit provision
but . . . changed the effective date to October 1, 2011. [Citation.]
"On September 20, 2011, Governor Brown
signed Assembly Bill No. 1X 17 (2011–2012 1st Ex.Sess.) (hereafter referred to
as Assembly Bill No. 1X 17), which was enrolled by the Secretary of State on September 21, 2011. (Stats. 2011, 1st Ex. Sess. 2011–2012, ch.
12, § 35.) Assembly Bill No. 1X 17 is
the current version of section 4019.
Assembly Bill No. 1X 17 again retained the enhanced conduct credit provision—four
days is deemed to have been served for every two days spent in actual
custody. (§ 4019, subd. (f).) As relevant here, section 4019, subdivision
(h) (hereafter referred to as section 4019(h) or subdivision (h)), provides: 'The changes to this section enacted by the
act that added this subdivision shall
apply prospectively and shall apply
to prisoners who are confined to a county jail . . . for a
crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.'"
(Rajanayagam,
italics added.)
B.
The
question presented is whether Sharif is entitled to an additional 78 days of
conduct credit─under the 2011 amendment to section 4019 that became
operative on October 1, 2011─for the period of presentence custody he
served between that date and his sentencing on March 5, 2012, even though he committed
his current offense before October 1, 2011.
We conclude section 4019 as amended expressly and plainly applies only
to prisoners who committed their current crimes "on or after October 1,
2011" (§ 4019(h)); and, thus, Sharif is not entitled to these
additional conduct credits because the more favorable accrual rate provided by
the 2011 amendment (one day of conduct credit for one day of presentence
custody actually served) does not apply to a defendant like Sharif who
committed his crime before October 1, 2011.
In reaching
this conclusion, we apply to amended section 4019, and particularly subdivision
(h) of that section, well-established principles of statutory
construction. The California Supreme
Court has explained that, in construing the relevant provisions of a statute,
"we strive to ascertain and effectuate the Legislature's intent.' [Citations.] Because statutory
language 'generally provide[s] the most reliable indicator' of that intent
[citations], we turn to the words themselves, giving them their 'usual and
ordinary meanings' and construing them in context [citation]. ' "If
there is no ambiguity in the language of the statute, 'then the Legislature is
presumed to have meant what it said, and the plain meaning of the language
governs.' " ' " (People v.
Castenada (2000) 23 Cal.4th 743, 746-747.)
"The interpretation of a statute presents a question of law subject
to de novo appellate review." (People
v. Wills (2008) 160 Cal.App.4th 728, 736.)
Here, the first sentence of section 4019(h) states:
"The changes to this section enacted by the act
that added this subdivision shall apply prospectively
and shall apply to prisoners who are confined to a county jail, city jail,
industrial farm, or road camp for a crime
committed on or after
After
indicating that the "changes" to section 4019, which include the more
favorable conduct credit accrual rate, apply "prospectively,"
subdivision (h)'s first sentence explicitly and plainly states that those
changes apply only to defendants whose crimes were committed "on or after
October 1, 2011." (§ 4019(h).) Thus, by the plain language of subdivision
(h)'s first sentence, section 4019 as amended would not apply to Sharif because
he committed his crime before October
1, 2011. Thus, the first
sentence supports the conclusion that Sharif is not entitled to conduct credit
at the more favorable accrual rate provided by the 2011 amendment.
The second
sentence of subdivision (h) introduces some confusion into the matter, as we
now discuss, but the application of well-established principles of statutory
construction supports our conclusion that Sharif is not entitled to enhanced
conduct credits for presentence custody he served from October 1, 2011 to the
date of his sentencing, as he claims, because he committed his crime before
October 1, 2011, the date the 2011 amendment became operative. The second sentence of subdivision (h)
provides:
"Any days earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law."
Arguably,
this second sentence of subdivision (h), if considered in isolation, could be
construed as implying that any days of presentence conduct credit earned by a
defendant after October 1, 2011,
are to be calculated at the more favorable accrual rate rate provided by the
amended statute, regardless of when the defendant committed his or her
offense. However, to interpret
subdivision (h)'s second sentence in this manner would impermissibly render its
first sentence surplusage.
It is
well-established that words used in a statute "'"must be construed in
context, and statutes must be harmonized, both internally and with each other,
to the extent possible."'" (People
v. Loeun (1997) 17 Cal.4th 1, 9.) Furthermore, effect must be given
to every word, clause and sentence of a statute, if possible. A statute "'should be construed so that
effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant,
and so that one section will not destroy another unless the provision is the
result of obvious mistake or error.'" (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260,
1269.)
Applying
these principles, we cannot construe the second sentence of subdivision (h) to
imply that any days of conduct credit earned by a defendant
calculated at the enhanced accrual rate for an offense committed
interpretation would render superfluous the part of subdivision (h)'s first
sentence that plainly indicates the 2011 conduct credit amendment applies only
to defendants whose crimes were committed "on or after October 1, 2011."
(§ 4019(h), italics added.)
Our
interpretation of section 4019(h) is supported by another well-established rule
of statutory construction. "'A
statute is passed as a whole and not in parts or sections and is animated by
one general purpose and intent.
Consequently, each part or section should be construed in connection
with every other part or section so as to produce a harmonious
whole.'" (People v. Rodriguez, supra,
14 Cal.App.4th at p. 1268, quoting 2A Sutherland, Statutory Construction (5th
ed. 1992) § 46.05, p. 103, fn. omitted.)
Here, as
noted, the first sentence of section 4019(h) plainly reflects that the
Legislature intended the enhanced conduct credit accrual rate to apply only to
those defendants who committed their crimes on
or after October 1, 2011. The second sentence of subdivision (h) does
not explicitly extend that enhanced accrual rate to defendants who, like
Sharif, committed their offenses before
October 1, 2011, but are in
local custody on or after October 1,
2011. To harmonize
subdivision (h)'s second sentence with its first sentence, we must interpret
the second sentence to be a legislative attempt, however inartful, to clarify
that those defendants who committed an offense before October 1, 2011─but
who are in local custody on or after October 1, 2011─are to earn conduct
credit under the accrual rate provided by prior law, not the more favorable
accrual rate provided by the amendment to section 4019 that became operative on
that date. To construe section 4019 by
considering in isolation the language of subdivision (h)'s second sentence and
by disregarding the language of its first sentence would contravene
well-settled principles of statutory construction and impermissibly disregard
the Legislature's clear intent plainly expressed in the first sentence. Accordingly, we construe the second sentence
of section 4019(h) as reaffirming that defendants who committed their crimes
before October 1, 2011, and
are in presentence custody on or after that date, still have the opportunity to
earn conduct credits, but under the accrual rate provided by prior law.
Citing
Sharif asserts that California Supreme Court
has "declared that credits for individuals in custody when the
amendment [to section 4019] went into effect" on October 1, 2011,
"should be calculated by a hybrid method:
the former version of the law governs custody credit calculations before
the amendment, and the amendment governs later custody credit calculations." Sharif's reliance on Brown is unavailing.
presentence custody straddled the January
25, 2010 effective date of the previous amendment to section 4019
at issue in that case were entitled to earn conduct credits at two different
rates, and thus the date when a defendant committed an offense is not
dispositive. (See Brown, supra, 54 Cal.4th
at pp. 322-323.) However, as the
not expressly declare whether the January
25, 2010 amendment was to apply retroactively or
prospectively. (Id. at p. 320.) Here, the
Legislature did expressly state that
the current version of section 4019 is to apply prospectively only to
defendants who commit their offenses on or after October 1, 2011.
Thus, Brown has no application
here.
We hold the
enhanced presentence conduct credit accrual rate provided by the amendment to
section 4019 that became operative on October
1, 2011, applies only to those defendants who committed their
crimes on or after that date. (Accord,
1546, 1548, 1553; Rajanayagam,
II. SECTION
2900.5(a)
Sharif next
contends the court erred when it failed to apply to his fines and fees─on
a proportional basis and at the statutory rate of $30 per day of
credit─the presentence custody credits he earned in excess of the 365
days of commitment to the custody of the Sheriff he was ordered to serve, as
required by section 2900.5.
The
Attorney General concedes, and we agree, that the court erroneously failed to
reduce Sharif's fines by the monetary credit resulting from Sharif's excess
presentence custody credits, as required by section 2900.5(a), which provides:
"In all felony and misdemeanor convictions . . . when
the defendant has been in custody, . . . all days of
custody of the defendant, . . . including
days . . . credited to the period of confinement pursuant
to Section 4019, . . . shall
be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not
limited to, base fines and restitution fines, which may be imposed, at the rate
of not less than thirty dollars ($30)
a . . . jail term of imprisonment and a fine, any days to
be credited to the defendant shall first be applied to the term of imprisonment
imposed, and thereafter the remaining
days, if any, shall be applied to the fine on a proportional basis, including,
but not limited to, base fines and restitution fines." (Italics added.)
As
explained in McGarry, supra, 96
Cal.App.4th 644, the monetary credit resulting from excess presentence custody
credit "must be used proportionally to reduce the base fine, penalty
assessments and restitution fine rather than any one of these categories
alone" (id. at p. 646) using a
mathematical methodology set forth in that case, and, "if the monetary
credit does not eliminate all amounts due, the defendant still owes the
remaining amount in each category."
(Id. at pp. 646, 648-650.)
Here, the
court committed Sharif to the custody of the sheriff for 365 days and properly
determined he was entitled to a total of 594 days of credit for time he served
in local presentence custody. Thus,
Sharif had an excess presentence custody credit of 229 days (594 - 365 = 229),
as the Attorney General correctly points out.
(See McGarry,
As the
court erroneously failed to apply section 2900.5(a), as both parties point out,
we reverse the judgment to the extent that the amounts of the base fines,
penalty assessments, and restitution fines the court imposed at sentencing have
not been reduced on a proportional basis by the monetary credit resulting from
the excess of Sharif's total presentence actual and good conduct custody
credits over his 365-day jail term, in accordance with the provisions of
section 2900.5(a) and the methodology set forth in McGarry, supra, 96
Cal.App.4th at pages 648-650.
III. RESTITUTION
FINE
Sharif also
contends the restitution fine imposed under section 1202.4(b) in the amount of
$240 violates the ex post facto clauses of the federal and state Constitutions
because he committed the current offense before January 1, 2012, when the amount of the fine increased
from $200 to $240. This contention is
unavailing because Sharif forfeited his claim by failing to object at his
sentencing hearing.
"A
defendant may not contest the amount, specificity, or propriety of an
authorized order of a restitution fine for the first time on appeal." (People
v. Turrin (2009) 176 Cal.App.4th 1200, 1207.)
Here,
Sharif implicitly acknowledges he is contesting for the first time on appeal
the amount and propriety of an order imposing a section 1202.4(b) a restitution
fine. He asserts, however, that the
restitution order is unauthorized and may be corrected on appeal because,
although the fine was in the "proper range" the court was allowed to
impose under section 1202.4(b), "it is clear that the trial court intended
to calculate any restitution fine on the basis of the statutory minimum and, as
such, it imposed the minimum statutory fine by selecting the new statutory
minimum amount of $240."
However, as
the Attorney General correctly points out, the record shows there was no plea
agreement or other commitment by the court to impose the minimum fine. Rather, the record establishes that the
probation report recommended a section 1202.4(b) fine in the amount of $240,
and the court imposed it. Citing section
1202.4, subdivisions (b)(1), (b)(2), (c), and (d), the Attorney General argues
that "[t]he sentencing court has the discretion to impose a fine of up to
$10,000, after assessing factors deemed relevant, although the court is not
required to conduct a hearing or to make express findings as to those
factors." In cases such as the
instant one in which the defendant is convicted of a felony, section 1202.4,
subdivision (b)(1)
title="">[2]
does authorize a sentencing court in its discretion to impose a restitution
fine in an amount not to exceed $10,000.
Here, as Sharif acknowledges, the challenged $240 restitution fine is in
the proper range the court was authorized to impose under section
1202.4(b). His speculative assertion
that it is "clear" the court "intended to calculate any
restitution fine on the basis of the statutory minimum," is not supported
by the record. As the fine he challenges
is an authorized order of a restitution fine, we conclude Sharif forfeited his
claim by failing to object at his sentencing hearing. (See People
v. Turrin, supra, 176 Cal.App.4th
at p. 1207.)
IV. ALCOHOL-RELATED
CONDITIONS OF PROBATION
Last,
Sharif contends the court erred in imposing alcohol-related conditions of
probation because they are not reasonably related to his offense or future
criminality. This contention is
unavailing.
A.
Under
section 1203.1, a court granting
probation may impose "reasonable conditions, as it may determine are
fitting and proper to the end that justice may be done, that amends may be made
to society for the breach of the law, . . . and generally
and specifically for the reformation and
rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j), italics
added.)
A trial
court's discretion in imposing conditions of probation, "although broad,
nevertheless is not without limits: a
condition of probation must serve a purpose specified in the
statute." (People v. Carbajal (1995) 10 Cal.4th 1114,
1121.) In addition, the California
Supreme Court has "interpreted [] section 1203.1 to require that probation conditions which regulate conduct
'not itself criminal' be 'reasonably related to the crime of which the
defendant was convicted or to future criminality.' " (Ibid.)
"Generally,
'[a] condition of probation will not be held invalid unless it "(1) has no
relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids
conduct which is not reasonably related to future criminality." '
" (People v. Olguin (2008) 45 Cal.4th 375, 379, italics
added, quoting People v. Lent
(1975) 15 Cal.3d 481, 486.) "This test is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a
probation term." (Olguin, at
p. 379.) Thus, "even if a condition
of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is
valid as long as the condition is reasonably related to preventing future
criminality." (Id.
at p. 380.)
"We
review conditions of probation for abuse of discretion." (People
v. Olguin,
"when its determination is arbitrary or capricious or '"'exceeds the
bounds of reason, all of the circumstances being considered.'"'" (People
v. Carbajal, supra, 10
Cal.4th at p. 1121.)
3.
Sharif
challenges the following two terms of his probation: (1) "Do not knowingly use or possess
alcohol if directed by the [probation officer]"; and (2) "Submit to
any chemical test of blood, breath, or urine to determine blood alcohol content
and authorize release of results to [the probation officer] or the court
whenever requested by the [probation officer], a law enforcement officer, or
the court ordered treatment program."
Sharif
claims these alcohol-related probationary terms should be stricken because they
"are invalid because (1) there is no indication alcohol was involved in
the instant offense; (2) the consumption of alcohol is not in itself criminal;
and (3) there is no indication alcohol consumption is related to [his] possible
future criminality." He also
asserts he has no record of alcohol abuse or dependence, and none of his
previous crimes were alcohol-related.
Sharif's
claim is unavailing. The record shows he
has a history of mental illness that involved several section 1368
proceedings. The record also
demonstrates Sharif has a history of drug abuse. In addition, the record shows the court
imposed a probationary condition requiring Sharif to attend and successful
complete a psychiatric counseling program as directed by his probation
officer. In light of Sharif's history of
mental illness and drug use, we conclude the court did not abuse its broad
discretion by imposing the alcohol-related probationary terms, because the
testing and no alcohol conditions of his probation are reasonably related to
his rehabilitation and success on probation, and they are thus reasonably
related to his possible future criminality.
DISPOSITION
The
judgment is reversed to the extent the amounts of the base fines, penalty
assessments, and restitution fines the court imposed at sentencing have not
been reduced on a proportional basis by the monetary credit resulting from the
excess of Sharif's total presentence actual and good conduct custody credits
over his 365-day jail term, in accordance with the provisions of Penal Code
section 2900.5, subdivision (a) and the methodology set forth in
In all other respects, the judgment is affirmed. We remand the matter for resentencing with
directions to calculate and allocate the monetary credit in accordance with the
provisions of Penal Code section 2900.5, subdivision (a) and the methodology
set forth in People v. McGarry,
it shall amend the abstract of judgment to reflect that amended judgment and
forward a certified copy of the amended abstract of judgment to the Department
of Corrections and Rehabilitation.
NARES,
Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
name="_ftn1" title="">[1] The following factual background is derived from the
probation report because the facts underlying Sharif's offense crime are not
relevant to the issues he raises in this appeal.
name="_ftn2" title="">[2] Section 1202.4, subdivision (b)(1) as amended provides: "(b) In every case where a person is
convicted of a crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary reasons for not
doing so and states those reasons on the record. [¶] (1) The
restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is convicted of a felony, the
fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, . . . and
not more than ten thousand dollars (
