People v. Smith CA3 ( 2014 )

Filed 12/24/14 P. v. Smith CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C076156
v. (Super. Ct. No. 13F03974)
DEANDRE SMITH,
Defendant and Appellant.
Appointed counsel for defendant Deandre Smith asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) We find no arguable error that would result in a
disposition more favorable to defendant, but we have identified an error in the award of
presentence credit, and we have also identified clerical errors in the abstract of judgment.
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We will modify the judgment, affirm the judgment as modified, and direct the trial court
to prepare an amended and corrected abstract of judgment.
I
Because the matter was resolved by plea and defendant waived referral to the
probation department, the facts are taken from the prosecutor’s statement of the factual
basis for the plea. In July 2008, defendant was convicted of possession of cocaine base
for sale. (Health & Saf. Code, § 11351.5.) Then, on June 22, 2013, defendant and a
female companion were in a car outside a café in Sacramento County. Defendant
removed a gun from his waistband and the gun accidentally discharged. Defendant’s
hand was injured and a bullet passed through both of the female’s legs.
Defendant pleaded guilty to possession of a firearm by a convicted felon (Pen.
Code, § 29800, subd. (a)(1))1 and admitted that he personally inflicted great bodily injury
in the commission of the offense (§ 12022.7, subd. (a)). In exchange, the trial court
dismissed an allegation that defendant committed the offense while released from
custody on a primary offense. (§ 12022.1.) The trial court sentenced defendant to the
low term of 16 months in prison, plus three years for the great bodily injury
enhancement. It also awarded 273 days of custody credit and 40 days of conduct credit
(§ 2933.1) and ordered defendant to pay a $280 restitution fine (§ 1202.4), a $280 parole
revocation fine (§ 1202.45), a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $30
court facilities assessment (Gov. Code, § 70373).
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
1 Undesignated statutory references are to the Penal Code.
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the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
However, our review of the record identified an error in the award of presentence
credit. Defendant was in custody from the date of the offense (June 22, 2013) through
the date of sentencing (Jan. 16, 2014), a period of 209 days. When the trial court clerk
noted that defendant “has 209 days actual” for the period, defense counsel said, “[H]e has
more than that, and I’ll tell you why. The case was dismissed and refiled, and because of
that he had credits from the time prior to that. [¶] So I calculate -- he was arrested on
June 22nd, and he’s been doing time on this case since June 22nd. I calculate 273 actual
with 40 good time for a total of 313 days of credit.” The prosecutor indicated that
defense counsel’s calculation seemed right.
Defense counsel correctly reasoned that defendant was entitled to presentence
custody credit from the date of the arrest through the date of sentencing. But the clerk
had correctly calculated that amount as 209 days. The dismissal and refiling of the case
did not entitle defendant to custody credit exceeding the period of his presentence
confinement. We will modify the judgment to award defendant 209 days of custody
credit and 31 days of conduct credit.
We have also identified two clerical errors on the abstract of judgment. In part 4,
the boxes indicating a prison sentence “due to” “current or prior serious or violent
felony” (§ 667.5, subd. (c)(8), 12022.7) must be checked. And in part 16, “CREDIT
FOR TIME SERVED,” “CASE A,” the box for section 2933 must not be checked and the
box for section 2933.1 must be checked. We will order correction of the abstract of
judgment.
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DISPOSITION
The judgment is modified to award defendant 209 days of custody credit and 31
days of conduct credit. The judgment is affirmed as modified. The trial court is directed
to prepare an amended and corrected abstract of judgment reflecting the judgment as
modified, and also correcting the following: in part 4, the boxes indicating a prison
sentence due to current violent felony (§ 667.5, subd. (c)(8), 12022.7) must be checked,
and in part 16, the box for section 2933 must not be checked and the box for section
2933.1 must be checked. The trial court is further directed to forward a certified copy of
the amended and corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
MAURO , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
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