P. v. Howard

Filed 10/11/06 P. v. Howard CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Jelani Kitwanna Howard of inflicting corporal injury on a former cohabitant and assault with a deadly weapon based on an incident in October 1999, and of first degree murder, attempted murder, and inflicting corporal injury on a cohabitant based on an incident in February 2000 as charged in a consolidated information. (People v. Howard (Feb. 20, 2003, C041099) [nonpub. opn.], rehg. den. & opn. mod. Mar. 10, 2003.) In a prior appeal, we affirmed the convictions, but remanded the matter because there was insufficient evidence to support the true finding on a prior conviction allegation. (Ibid.)

Following imposition of sentence on remand, defendant again appealed. We again affirmed the judgment, but remanded for resentencing as a result of substantial sentencing errors. (People v. Howard (Jan. 10, 2005, C045844) [nonpub. opn.].)

Following the latest sentencing hearing, defendant has appealed for a third time, raising two sentencing errors. We will modify the judgment to add one day of credit, and otherwise affirm the judgment.

DISCUSSION

1. Custody Credit

Defendant initially contends the court miscalculated presentence custody credits because it failed to include the day of his arrest.^[1] Defendant is mistaken. He was arrested on February 21, 2000, in Denver, and remained there until March 7, 2000. Because 2000 was a leap year, defendant was entitled to nine days of custody credit in February and seven days in March, for a total of 16 days. The court, in fact, awarded defendant 16 days of custody credit for this period. Defendant asserts he should have received 17 days of credit, but a comparison of the dates of custody with the credits awarded shows this assertion is false. The credits for this period were correctly calculated.^[2]

Nonetheless, defendant is entitled to one additional day of custody credit for the period he was imprisoned at the Department of Corrections and Rehabilitation between the first and second resentencing hearings. This period commenced on December 25, 2003, and ended June 29, 2005. The probation report calculated this period to consist of 552 days, and the court awarded credits accordingly. The period actually consists of 553 days, since 2004 also was a leap year. We presume the error resulted from the omission of February 29, 2004, from the count. We will modify the judgment to include one additional day of custody credit.

2. Blakely Error

The court imposed an upper term sentence for defendant’s attempted murder conviction, as well as consecutive terms for several other convictions and enhancements. Defendant contends the sentence was imposed in violation of his Sixth Amendment right to trial by jury, as described in Blakely v. Washington (2005) 542 U.S. 296 [159 L.Ed.2d 403]. The Supreme Court of California disposed of this contention in People v. Black (2005) 35 Cal.4th 1238, 1244, 1254. For reasons set forth therein, as well as our duty to follow this precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject defendant’s claim of sentencing error.

DISPOSITION

The judgment is modified to add one day of custody credit for the period defendant was imprisoned at the Department of Corrections and Rehabilitation as described above. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment incorporating this change and to forward a certified copy to the Department of Corrections and Rehabilitation.

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P.J.

RAYE , J.

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^[1] Defendant acknowledges that he did not raise this issue at sentencing, and that he has not filed a motion to correct the record in the trial court. (Pen. Code, § 1237.1.) However, since the appeal raises another issue, we may review the credit issue in the first instance. (People v. Acosta (1996) 48 Cal.App.4th 411, 427 [credit issue may be raised on appeal in the absence of a motion to correct the record filed in the trial court where another issue is raised on appeal].)

^[2] Respondent states that defendant actually received too many days of presentence custody credit, but this statement is based on the possibility that prison authorities will miscalculate credits by awarding defendant prison custody credits that the court already included in its revised credit total. The record does not lend any support to this unfounded supposition.