P. v. Payton
Filed 10/26/07 P. v. Payton 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JOSHUA PAYTON, Defendant and Appellant. | C053845 (Super. Ct. No. 06F04163) |
A jury found defendant Joshua Payton guilty of carjacking (Pen. Code, 215, subd. (a))[1]and found true that defendant personally used a firearm during the offense ( 12022.53, subd. (b)) and that the victim was age 65 or older or disabled. ( 667.9, subd. (a).) The trial court denied probation and sentenced defendant to 14 years in state prison, consisting of a low term of three years for the underlying offense, 10 years consecutive for the firearm use enhancement and one year consecutive for the enhancement based on the victims age and disability.
The charges stemmed from an incident in which the 18-year-old defendant and his 16-year-old girlfriend approached a truck with the motor running and a passenger inside. Defendant told the passenger -- a 65-year-old man whose left leg was amputated above the knee -- to get out of the truck, and pointed a gun at him when he did not immediately comply. The passenger got out of the truck, and defendant and his girlfriend drove off in the truck. A police officer stopped the truck when it was spotted 10 minutes after a dispatch was issued concerning the incident
Defendant confessed to the officer that his girlfriend and he decided to steal a car in order to leave the state. He told the officer that he purchased a handgun the evening before the incident for the purpose of stealing a car and admitted that he pointed the gun at the trucks passenger when he ordered him to get out. Defendant also admitted he droved off in the truck with his girlfriend.
Defendant appealed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. 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.
Our review of the record discloses errors in the award of presentence custody credits. First, the trial court erred by failing to limit defendants conduct credits to 15 percent. Section 2933.1 provides, in part: Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. Carjacking is one of the felony offenses listed in section 667.5, subdivision (c), and the same limitation is imposed on presentence custody credits. ( 2933.1, subd. (c).) Although the probation report noted the applicability of section 2933.1 in the present matter, and a box on the abstract of judgment is checked that indicates the section applies, the trial court failed to limit defendants conduct credits as mandated.
In addition, defendant was entitled to one additional day of actual presentence custody credits, or 144 days rather than 143 days. Defendant was arrested on May 9, 2006, and was sentenced on September 29, 2006, and he is entitled to actual custody credit for the day of arrest, the day of sentencing and all days in between. (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124; People v. Smith (1989) 211 Cal.App.3d 523, 526.) Thus, defendant should have been awarded 144 days actual custody credits plus 21 days of conduct credits for a total of 165 days. We shall modify the judgment accordingly.[2]
We have undertaken an independent examination of the entire record in this case and have found no other arguable issues that would result in a disposition more favorable to the defendant.
DISPOSITION
The judgment is modified to award 144 days of actual custody credits and 21 days of conduct credits for a total of 165 days presentence custody credits, and with this modification the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a copy thereof to the Department of Corrections and Rehabilitation.
NICHOLSON , J.
We concur:
SCOTLAND, P.J.
CANTIL-SAKAUYE , J.
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[1] Further undesignated statutory references are to the Penal Code.
[2] In the interest of judicial economy, we have resolved these issues summarily in this opinion. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, 68081.)
