P. v. Simental

Filed 9/28/07 P. v. Simental CA2/4

Opinion following remand form U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed in part; Reversed in part, and Modified.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Steven E. Mercer, Susan Sullivan Pithey and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Ray Tommy Simental appeals from the judgment of conviction following a jury trial. He was convicted of second degree robbery (count 1;  211) and grand theft of more than $400 (count 2;  487, subd. (a)).[1]Defendant admitted that he had previously been convicted of violating section 422, which qualified as both a prior strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony ( 667, subd. (a)(1)). The trial court sentenced defendant to total term of 15 years in state prison, calculated as follows: the upper term of five years for the robbery conviction, which was doubled based on the prior strike conviction, plus an additional term of five years for the prior serious felony conviction. The court stayed the sentence for grand theft pursuant to section 654. The court awarded defendant 200 days of custody credit: 134 actual days, plus 66 days good time/work time.

In our original opinion, we concluded that the grand theft conviction must be reversed, and that the trial erred in its calculation of good time/work time credit. We ordered the court to prepare a corrected abstract of judgment that deletes the grand theft conviction, and that reflects an award of 20 days good time/work time credit. In all other respects, we affirmed the judgment.

The United States Supreme Court granted defendants petition for writ of certiorari, and later vacated our judgment and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham). We have received supplemental briefing from the parties regarding Cunningham, and the decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We again affirm the judgment as modified. Our opinion is the same as our original opinion, with the exception of our discussion of the Cunningham issue.

FACTUAL BACKGROUND

Because the issues on appeal do not require a discussion of the evidence, we simply note that on April 12, 2005, defendant pointed what appeared to be a firearm at Norma Flores, a cashier at a gas station, and took approximately $700 in cash. In a later confession to the police, he admitted committing the crime, but stated that the gun was a toy.[2]

DISCUSSION

I. Imposition of the Upper Term for Robbery

Defendant contends that imposition of the upper term of five years on his robbery conviction violated his federal constitutional right to a jury trial. In selecting the upper term, the trial court relied on the fact that defendant had seven prior convictions for offenses involving violence. These convictions included one for simple battery ( 242), three for battery against a former spouse ( 243, subd. (e)(1)), one for obstructing a peace officer ( 148, subd. (a)(1)), one for terrorist threats ( 422), and one for battery on a peace officer ( 243, subd. (b)). As held in Black II, supra, 41 Cal.4th at page 820, reliance on a defendants criminal history does not violate the Sixth Amendment under Cunningham, and renders the defendant eligible for imposition of the upper term. Hence, in the instant case, there is no Sixth Amendment infirmity in defendants sentence.

II. The Conviction of Grand Theft

Defendant contends that because grand theft is a lesser included offense of robbery, his grand theft conviction must be reversed. Respondent concedes the issue, and we agree. (See People v. Cole (1982) 31 Cal.3d 568, 582; People v. La Stelley (1999) 72 Cal.App.4th 1396, 1399-1401; People v. Estes (1983) 147 Cal.App.3d 23, 29.) The conviction of grand theft is reversed.

III. Custody Credits

Although the prosecutor requested that conduct credit be awarded at a rate of 15 percent of defendants actual time in custody, the trial court awarded conduct credit calculated at 50 percent. The court stated, Ill give him 50 percent and let the Department of Corrections reverse me. Respondent argues that the custody credit award is illegal, and requests that we modify the judgment to reflect an award calculated at 15 percent.

Section 2933.1, subdivisions (a) and (c) provide that a defendant convicted of a felony listed in section 667.5 can receive no more than 15 percent good time/work time credit. Robbery is listed in section 667.5, subdivision (c)(9), and therefore defendant is entitled to only 15 percent conduct credit. (People v. Van Buren (2001) 93 Cal.App.4th 875, 878-879, overruled on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) Because the credit award was illegal, we order the abstract of judgment modified to reflect conduct credit calculated at 15 percent, i.e., 20 days. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-916 [court has authority to correct sentence unauthorized by law, even if correction results in greater sentence].)

DISPOSITION

The conviction of grand theft ( 487, subd. (a)) on count 2 is reversed. The award of conduct credit is modified to award only 20 days. ( 2933.1, subds. (a) & (c).) Otherwise, the judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment reflecting these changes.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] All undesignated section references are to the Penal Code.

[2] The jury found not true an allegation that defendant personally used a firearm ( 12022.53, subd. (b)).