P.v . Green
Filed 10/1/09 P.v . Green 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TAURUS EUGENE GREEN, Defendant and Appellant. | C059073 (Super. Ct. No. 06F09800) |
A jury convicted defendant Taurus Eugene Green of forcible rape (Pen. Code, 261, subd. (a)(2)) and two counts of sexual penetration with a foreign object (Pen. Code, 289, subd. (a)(1)). The court sentenced defendant to 12 years in prison.
On appeal, defendant contends he received consecutive sentences in violation of his rights to due process and jury trial, and the trial court undercounted the pretrial custody credits. Agreeing that the court miscalculated the custody credits, we shall modify the judgment and affirm the judgment as modified.
BACKGROUND
A detailed recitation of the facts underlying the offenses is unnecessary to the resolution of the issues on appeal. Accordingly, we provide an abbreviated version.
In 1996, 16-year-old D. L. was approached by defendant as she was leaving the Florin Mall, and agreed to have sex with him for $100. As defendant and D. L. walked up the road looking for a place, defendants demeanor changed, becoming really annoyed, angry, dominant, mean. After D. L. asked where they were going, defendant put a gun to her back and led her to a fenced, wooded area.
D. L. fought defendant and told him she had AIDS. Defendant dropped his gun during the struggle but produced a knife. The struggle continued until defendant told D. L. to be quiet or he would stick the knife in her. At his direction she then took off her clothes, and agreed to let him rape her if defendant first put on a condom.
Defendant sexually assaulted D. L. several times at knifepoint. After finishing, defendant took off the condom and threw it on the ground.
D. L. went to a nearby house and called the police. A Sacramento County sheriffs sergeant was dispatched to the scene, and found a condom lying on the ground. Defendants and D. L.s DNA were found inside the condom.
DISCUSSION
I.
The court sentenced defendant to consecutive terms for all three offenses. In his opening brief, defendant contends this violates his rights to due process and jury trial as recognized in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].
Defendant concedes this claim is now foreclosed by the recent United States Supreme Court decision declining to extend Apprendi to consecutive sentencing. (Oregon v. Ice (2009) 555 U.S. ___, ___ [172 L.Ed.2d 517, 525-526]; see also People v. Black (2007) 41 Cal.4th 799, 822-823.)
II.
Defendant was awarded 355 days of presentence custody credit, consisting of 309 days actual and 46 days conduct credit. Defendant was in custody for the current offenses on July 5, 2007, and was sentenced on May 16, 2008. Both parties correctly agree he was in custody for 317 days and is entitled to 47 days conduct credit, for a total of 364 days credit. We shall modify the judgment accordingly.
DISPOSITION
The judgment is modified to provide for 317 actual days and 47 conduct days for a total of 364 days presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
SIMS , Acting P. J.
NICHOLSON , J.
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