P. v. Phillips
Filed 9/11/08 P. v. Phillips 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CONWAY JOSEPH PHILLIPS, Defendant and Appellant. | C054678 (Super. Ct. No. 05F05182) |
An information charged defendant Conway Joseph Phillips with five offenses arising from an attack on a single victim. The jury convicted him of misdemeanor sexual battery (Pen. Code, 243.4, subd. (d)(1); unspecified section references that follow are to the Penal Code), felony false imprisonment
( 236), and assault with a deadly weapon ( 245, subd. (a)(1)) and found a charged weapons enhancement to be true ( 12022, subd. (b)(1)), but was unable to reach a verdict on two charges of sexual assault. ( 220.) The trial court sentenced defendant to an aggregate prison term of three years eight months.
On appeal, defendant challenges the admissibility of evidence of uncharged sex offenses and the constitutionality of a related jury instruction. He also asserts that presentence credits were improperly calculated. None of these contentions has merit, and we therefore affirm the judgment.
Discussion
Given the nature of defendants claims on appeal, we forego the usual recitation of facts and proceedings and instead incorporate this information in our discussion as relevant.
I
Evidence of Uncharged Sex Offenses and Related Jury Instruction
Relying on Evidence Code section 1108, the trial court admitted evidence relating to uncharged sex offenses committed by defendant more than 15 years earlier. Defendant asserts that this statutory provision violates his constitutional rights to fair trial and due process.
However, defendant recognizes that the California Supreme Court resolved these issues adversely to him and upheld the constitutionality of Evidence Code section 1108 in People v. Falsetta (1999) 21 Cal.4th 903. As defendant also acknowledges, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In an associated claim, defendant raises constitutional challenges to Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 1191, the instruction relating to evidence of uncharged sex offenses. Again, defendant recognizes that we are bound by case law upholding the constitutionality of this instruction. In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, the California Supreme Court approved the nearly identical predecessor instruction, CALJIC No. 2.50.01. As we concluded in People v. Cromp (2007) 153 Cal.App.4th 476, 480, there is no material difference between CALCRIM No. 1191 and the older CALJIC No. 2.50.01, and the analysis in Reliford applies with equal force to the CALCRIM instruction. CALCRIM No. 1191 is constitutionally sound.
II
Presentence Credits
The trial court sentenced defendant to the midterm of three years on count five (assault with a deadly weapon), a consecutive eight-month term on count four (false imprisonment), and a concurrent 180-day sentence on count three (misdemeanor sexual battery).
The court also sustained a petition to violate defendants probation in an earlier case, No. 04F01210, in which defendant had been convicted of misdemeanor grand theft. Defendant had been sentenced to 180 days for that offense, with the sentence suspended pending successful completion of probation.
In awarding presentence and conduct credits, the court determined that defendant had served one day on the earlier misdemeanor case, and applied 179 days presentence credit to satisfy that sentence. It applied the remaining 67 days credit to the current prison term.
On appeal, defendant challenges this allocation of credit. He contends that because the court did not specify whether the sentence imposed in the instant case was to run concurrently or consecutively to his sentence for his earlier misdemeanor, it must be deemed to run concurrently. (See 669.) Consequently, he asserts, presentence time credits must be credited against both his current prison sentence and the earlier misdemeanor case, thereby entitling him to an additional 179 days credit against his prison term. (See 2900.5, subd. (b); People v. Schuler (1977) 76 Cal.App.3d 324, 330.) We disagree.
The necessary predicate for defendants claim is missing. Defendant would be entitled to have credits against both cases only if the sentences in these cases were to be served concurrently. They were not.
A review of the transcript of the sentencing proceedings indicates that the trial court determined that these sentences were to run consecutively. While we acknowledge that the discussion at sentencing was less than a model of clarity, the import of the courts comments is unmistakable.
Initially, the court stated that defendants probation in the earlier grand theft case would be revoked, and he will not be reinstated on that, since he will be on parole when hes out. Any time he gets will be concurrent. When conversation turned to the amount of time defendant had left to serve on that earlier case, 179 days, the court asked, Why shouldnt we just make that concurrent while hes in prison, with his prison time?
The prosecutor responded, Or you can put his credits to satisfy that sentence based upon the time he served. . . . He shouldnt get double credits for everything and concurrent. The prosecutor had earlier asked the court to run the sentences on these cases consecutively so that defendant would have to serve time for his earlier misdemeanor in the county jail before going to state prison.
The court ultimately agreed with the prosecutors suggestion. The court said, Ill give him credits. Hes to do 179. . . . So his misdemeanor is finished. He was on it from probation, so Im terminating that probation. The court imposed the remaining days of credit against defendants sentence in this case.
The courts comments clearly indicate an intent to order these terms to run consecutively. The sentence on the violation of probation was to be served first, and the court applied 179 days credit against that term to complete that sentence. The prison term for the charges in this case was to follow.
Credits were properly allocated. Because this case does not involve concurrent sentences, defendant is not entitled to have an extra 179 days credited against his prison sentence.
The People assert that the abstract of judgment must be corrected because it does not reflect the time and conduct credits actually pronounced by the court. The Peoples claim is based on an outdated abstract of judgment. At sentencing, the court stated that defendant was entitled to 64 days credit, 43 days actual time plus 21 days conduct credit, but the
abstract reflects an award of only 63 days, including 20 days conduct credit. The Peoples request for correction is based on this discrepancy. However, in response to defendants October 2007 request for a correction of the abstract of judgment, the trial court amended the abstract of judgment to indicate that the actual time credit was 45 days, not 43. This subsequent correction moots the concerns raised by the People. No further amendment is necessary.
Disposition
The judgment is affirmed.
HULL, J.
We concur:
BLEASE , Acting P.J.
MORRISON , J.
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