P v. >Livingston>

 

 

 

 

 

 

 

 

 

 

 

Filed 10/3/13  P v. Livingston 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ARNOLD ROSHAWN LIVINGSTON,                           Defendant and Appellant.

C072740   (Super. Ct. No. 11F01267)

 

 

 

            This is an
appeal pursuant to href="http://www.mcmillanlaw.com/">People v. Wende (1979)
25 Cal.3d 436 (Wende). 

            On October 19, 2010, defendant Arnold
Roshawn Livingston was detained outside a department store by an off-duty
Department of Corrections officer after defendant grabbed, choked and forced
his girlfriend to leave the store. 
Defendant threatened to retrieve a knife from his pocket and stab the
off-duty officer.  In 1992, defendant was
convicted of second degree robbery. 

            After the
court found defendant incompetent to stand trial, defendant was placed at Napa
State Hospital
until competency could be restored.  A
month later, Napa certified
defendant as competent and he returned to county jail.  After the trial court found defendant
competent to stand trial, defendant entered a negotiated plea of no contest to
attempted criminal threats (Pen. Code, §§ 664/422; undesignated section
references are to this code) and admitted a strike prior (§ 667, subds.
(b)-(i)) in exchange for a stipulated 16-month term and dismissal of the
remaining counts (false imprisonment with violence and misdemeanor
battery).  The court imposed the 16-month
term (the low term of eight months, doubled for the strike prior), and released
defendant as time served with 547 days of actual custody credit.  The credits exceeded the sentence and were
applied to the payment of the fees and fines. 


            Defendant
appeals.  His request for a href="http://www.fearnotlaw.com/">certificate of probable cause
(§ 1237.5) was denied.  Defendant’s
subsequent notice of appeal seeks review on matters not affecting the
plea. 

            We
appointed counsel to represent
defendant on appeal.  Counsel filed an
opening brief that sets forth the facts of the case and requests 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 the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.  More than 30 days elapsed, and we received no
communication from defendant.

            We note an error in the calculation
of the excess credit towards the payment of fees and fines.  The prosecutor stated that defendant’s
16-month sentence equaled 485 days, 80 percent of which totaled 388 days, but
because defendant had 547 actual days of custody, defendant was time served and
the excess days would be applied to the fines and fees (restitution fine and
main jail booking and classification fees). 
The trial court stated that defendant was entitled to 547 actual days
and 109 days of conduct credits “pursuant to the Penal Code section that
governs serious felonies as far as credits that
can be earned.”  (Italics
added.)  The minute order and the
abstract of judgment reflect 547 actual days and 109 conduct days for a total
of 656 days of presentence custody credit. 
The abstract cites section 2933.1 for conduct credits.  Attempted criminal threats is not a “violent”
felony; instead, attempted criminal threats is a “serious” felony
(§ 1192.7, subd. (c)(38), (39)) so the 15 percent rule of section 2933.1
does not apply.  Plus 15 percent of 547
is 82.  But 20 percent of 547 is
109.  In view of the court’s statement that
it awarded 109 days of conduct credits based on what defendant could have
earned (presumably meaning while in prison), it appears the court erroneously
awarded “post sentence” conduct credit rather than “presentence” conduct
credit.  The record does not include a
probation report to reflect the dates of defendant’s custody.  Without an adequate record reflecting when
defendant was in custody, we are unable to determine the number of
“presentence” conduct credits he should have received towards his
fees/fines.  (§ 2900.5, subd. (a);
see People v. Robinson (2012)
209 Cal.App.4th 401, 406-407; People
v. McGarry (2002) 96 Cal.App.4th 644, 646-647.)  It is the trial court’s duty to determine
defendant’s actual dates of custody and the total number of days to be
credited.  (§ 2900.5, subd.
(d).) 

            Having
undertaken an examination of the entire record, we find no other arguable error
that would result in a disposition more favorable to defendant.

Disposition

            The matter
is remanded to the trial court for recalculation of defendant’s custody
credits.  The judgment is otherwise
affirmed.

 

 

                                                                                              HULL                           ,
J.

We concur:

 

 

 

          RAYE                           ,
P. J.

 

 

 

          BLEASE                       , J.