P. v. McBride
Filed 6/18/13 P. v. McBride 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Placer)
THE PEOPLE,
Plaintiff and Respondent,
v.
BENJAMIN EMMANUEL McBRIDE,
Defendant and Appellant.
C071880
(Super. Ct. No. 62-111663)
A
jury convicted defendant Benjamin Emmanuel McBride of two counts of
a stolen vehicle (counts 1 & 2; ADDIN
BA xc <@ost> xl 9 s GFOHGK000007 xpl 1 l "Pen. Code" Pen. Code,
BA xc <@osdv> xl 6 s GFOHGK000010 l "§ 496d" § 496d). The offense charged in count 1 occurred on or
about December 8, 2011; the offense charged in count 2 occurred on or about January
18, 2012.
In a bifurcated proceeding, the
trial court found that defendant had incurred one strike ( ADDIN BA xc <@osdv> xl 31 s
GFOHGK000011 xpl 1 l "§§ 667, subds. (b)-(i),
1170.12" §§ 667, subds.
(b)-(i), 1170.12) and one prior prison term ( ADDIN BA xc <@osdv> xl 18 s
GFOHGK000012 xpl 1 l "§ 667.5, subd. (b)"
§ 667.5, subd.
(b)).
The trial court sentenced defendant
to six years four months in state prison (two years on count 1, doubled for the
strike, plus 16 months consecutive on count 2, plus one year consecutive for
the prior prison term enhancement). The
court awarded 161 days of presentence custody credit (135 days of actual credit
and 26 days of conduct credit). The
court orally imposed fines and assessments including a $30 criminal conviction
assessment (
ADDIN BA xc <@st> xl 18 s GFOHGK000001 xpl 1 l "Gov. Code, § 70373" Gov. Code,
§ 70373) and a $40 court security assessment ( ADDIN BA xc <@osdv> xl 22 s
GFOHGK000013 xpl 1 l "§ 1465.8, subd. (a)(1)"
§ 1465.8, subd.
(a)(1)). However, the abstract of
judgment gives the amount of the criminal conviction assessment as $40.
Defendant contends (1) he is
entitled to day for day conduct credit, and (2) the $40 criminal conviction
assessment shown in the abstract of judgment should be reduced to $30, the
amount stated orally by the trial court.
The People agree with defendant’s
first point. They contend, however, that
the criminal conviction assessment should be $60 because the assessment (in the
amount stated by the trial court) should have been imposed as to both counts 1
and 2. They also contend that, for the
same reason, the $40 court security assessment should have been $80.
We shall remand the matter with
directions to the trial court to award defendant day for day conduct credit and
to impose a $60 criminal conviction assessment and an $80 court security
assessment. We shall affirm the judgment
as modified.
FACTUAL
AND PROCEDURAL BACKGROUND
defendant’s contentions do not implicate the facts of his crimes, we recount
them briefly.
Freda B. and her daughter bought a
1991 Honda Accord from Ashley H. in 2010, agreeing to pay in installments. Defendant is the father of Ashley H.’s
daughter.
Ashley H. testified that she transferred
the car’s title to Freda B. in February 2011.
Ashley H. denied that she had ever signed a document selling the car to
defendant.
On the evening of December
7, 2011, Freda B.
parked the car in front of her home and locked it. The next morning it was missing.
About a month later, Roseville
Police Officer Andrew Bonner found the car (reported stolen) parked on a street
with the engine still warm and ticking; defendant’s personal effects were
inside. Defendant’s mother told Officer
Bonner that defendant had recently been driving a Honda Accord and pointed out
where defendant parked. The car was
returned to Freda B.
On January 17, 2012, Freda B. parked the car on the street and
locked it. The next morning it was
missing.
A week later, Officer Bonner
discovered that the Honda Accord was again on the stolen-car list. He found the car parked outside defendant’s
apartment building. Spotting defendant
inside his apartment, Officer Bonner executed an arrest warrant on him.
Searching defendant’s apartment,
officers found a Department of Motor Vehicles document purporting to show that
Ashley H. had sold the car to defendant on “December 12th,
20[unintelligible].†Ashley H.’s
purported signature on the document did not match a signature known to be hers.
Defendant testified on his own
behalf. He claimed that Freda B. never
paid the full purchase price for the car.
He loaned her money in return for the temporary use of the car and they
shared it for a few months, but she never repaid the loan.
DISCUSSION
I
parties agree that the trial court erred by failing to award defendant day for
day presentence conduct credits. We
agree with the parties.
Under ADDIN
BA xc <@osdv> xl 12 s GFOHGK000014 l "section 4019" section 4019, as amended operative October
1, 2011, all persons sentenced to prison for crimes committed on or after that
date are entitled to two days of presentence conduct credit for each two days
of actual presentence custody. ( ADDIN BA xc <@osdv> xl 28 s
GFOHGK000015 xpl 1 l "§ 4019, subds. (b),
(c), (h)" § 4019, subds.
(b), (c), (h).) Because defendant’s
crimes were committed after October 1, 2011, he gets the benefit of the current
version of ADDIN BA xc <@$osdv> xl 12 s
GFOHGK000014 section 4019. Therefore, the trial court should have
awarded him 134 days of presentence conduct credits. On remand, the court is directed to prepare
an amended abstract of judgment reflecting the correct credit award.
II
mentioned above, the trial court imposed a $30 criminal conviction assessment ( ADDIN BA xc <@$st> xl 18 s
GFOHGK000001 xpl 1 Gov. Code,
§ 70373), but the abstract of judgment shows the amount as $40. Relying on the rule that the oral
pronouncement of judgment controls over the abstract of judgment ( ADDIN BA xc <@cs> xl 50 s
GFOHGK000002 xhfl Rep xpl 1 l "
Cal.App.4th 1403, 1416" People
v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416; see ADDIN
BA xc <@cs> xl 44 s GFOHGK000003 xhfl Rep xpl 1 l "People v. Mesa (1975)
contends that this court must reduce the assessment to $30.
The People agree that the assessment
should be $30, but contend that the trial court erred by failing to impose that
assessment as to both counts of which defendant was convicted; therefore, they
maintain, the total assessment should be $60.
For the same reason, they contend that the $40 court security assessment
imposed by the trial court ( ADDIN BA xc <@osdv> xl 8 s
GFOHGK000016 xpl 1 l "§ 1465.8" § 1465.8)
should be increased to $80. We agree
with the People.
ADDIN
BA xc <@st> xl 49 s GFOHGK000004 l "Government Code section 70373, subdivision (a)(1)" Government Code
section 70373, subdivision (a)(1), provides in part that a criminal
conviction assessment of $30 shall be imposed on every felony conviction. ADDIN
BA xc <@st> xl 45 s GFOHGK000005 l "Penal Code section 1465.8, subdivision (a)(1)" Penal Code section
1465.8, subdivision (a)(1), provides (with an exception not relevant here)
that a court security assessment of $40 shall be imposed on every conviction of
any criminal offense. Thus, both
assessments are mandatory for every felony of which a defendant is
convicted. ( ADDIN BA xc <@cs> xl 53 s
GFOHGK000006 xhfl Rep xpl 1 l "
Cal.App.4th 480, 483-484" People v. Sencion (2012) 211 Cal.App.4th 480, 483-484 ( ADDIN BA xc <@$cs> xl 7 s
GFOHGK000006 xpl 2 Sencion).) The trial court should have imposed both
assessments as to both counts.
On
remand, the oral pronouncement of sentence shall be corrected to show a
criminal conviction assessment of $60 ( ADDIN BA xc <@$st> xl 18 s
GFOHGK000001 xpl 1 Gov. Code, § 70373) and a court security
assessment of $80 ( ADDIN BA xc <@$osdv> xl 8 s
GFOHGK000016 xpl 1 § 1465.8). ( ADDIN BA xc <@$cs> xl 41 s
GFOHGK000006 xhfl Rep xpl 1 Sencion, supra,
211 Cal.App.4th at p. 485.)
The amended abstract of judgment shall show these assessments.
DISPOSITION
matter is remanded to the trial court with directions to award defendant 134
days of presentence conduct credit, to impose a criminal conviction assessment
of $60 and a court security assessment of $80, and to prepare an amended abstract
of judgment which shows these modifications of the sentence. As modified, the judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
BUTZ ,
J.
MAURO , J.
name="_ftn1" title="">[1]
ADDIN BA xc <@osdv> xl 20 s
GFOHGK000008 l "Undesignated
section" Undesignated section
references are to the ADDIN BA xc <@ost> xl 10 s
GFOHGK000009 l "Penal
Code" Penal Code.
