Opinion
B208447
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. GREGORY ANDERSON, Defendant and Appellant.
Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Convicted of second degree robbery, defendant, Gregory Anderson, appeals from a May 15, 2008 sentence imposed following probation revocation. Defendant has filed a pro se letter brief and we have requested the parties to brief two sentencing issues. We reverse in part, modify in part, and otherwise affirm the judgment.
Defendant was arrested on December 11, 2006, and on May 9, 2007 pleaded nolo contendere to second degree robbery. (Pen. Code, § 211.) Imposition of sentence was suspended and defendant was placed on three years formal probation. He was ordered to serve 103 days in the county jail as a probation condition and received credit for 103 days (69 actual plus 34 conduct). He was further ordered among other things to: not associate with his co-defendants or gang members; complete 250 hours of community service within one year; and seek and maintain training, schooling, or employment.
Defendant was again arrested on March 27, 2008, and subsequently found in violation of his probation. He was sentenced on May 15, 2008, to two years in state prison. He was ordered to pay: a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $200 probation revocation restitution fine (§ 1202.44); a $200 parole revocation restitution fine (§ 1202.45); a $20 court security fee (§ 1465.8, subd. (a)(1)); and a $20 deoxyribonucleic acid state-only penalty (Gov. Code, § 76104.7). He received credit for 152 days in actual custody plus 24 conduct credits for a total presentence custody credit of 176 days.
We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On September 8, 2008, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. On October 6, 2008, defendant filed a letter brief in which he asserts Jelani Jones, his girlfriend, could have testified he was employed part-time by El Nido Family Center in Compton. Defendant further contends state authorities withheld relevant information concerning a relationship with a co-defendant. Defendant requests that we investigate his employment history and a relationship with the individual. It appears defendant is arguing he was denied effective assistance of counsel. However, defendant was present in court and could have raised these issues with defense counsel. Moreover, defendant has not shown it is reasonably probable that, but for counsels purported failure to present the evidence discussed, the result of the proceeding would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; In re Avena (1996) 12 Cal.4th 694, 721.) There was testimony defendant violated his probation by: failing to report in October and November 2007 and February 2008; failing to provide proof of enrollment in community service; and failing to make regular payments towards his financial obligations.
Defendant received 176 days of presentence credit. We asked the parties to brief the question whether defendant received excessive custody credit. (Pen. Code, §§ 2900.5, 4019.) The failure to award a correct amount of custody credit is a jurisdictional error that may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8) Defendant was arrested on December 11, 2006, released on bail on February 17, 2007, and entered his nolo contendere plea on May 9, 2007 while released on bail. On May 9, 2007, he was ordered as a probation condition to serve 103 days in the county jail and received credit for 103 days. This was calculated by adding 69 days in presentence custody and 34 days of conduct credit. (In re Carr (1998) 65 Cal.App.4th 1525, 1535-1536.) As noted, defendant was credited with time served. Upon probation revocation and sentencing to state prison, however, defendant was entitled to only 10 days of conduct credit. (§§ 2933.1, 667.5, subd. (c)(9); People v. Daniels (2003) 106 Cal.App.4th 736, 739-740.)
While on probation, defendant was arrested on March 27, 2008. On April 2, 2008, his probation was revoked in the present case and he was remanded without bail. He remained in custody until he was sentenced on May 15, 2008. He was awarded 176 days of presentence custody credit; 152 days actual and 24 days of conduct credit. He was entitled, however, to the initial 79 days (69 plus 10) plus 44 days of presentence custody from April 2 through May 15, 2008 and 6 days of conduct credit (§§ 2933.1, 667.5, subd. (c)(9)), for a total of 129 days.
We also asked the parties to brief the question whether it was error to impose a Government Code section 76104.7 deoxyribonucleic acid state-only penalty on the court security fee. As noted above, defendant was ordered to pay a $20 deoxyribonucleic acid state-only penalty pursuant to Government Code section 76104.7. This was error. No Government Code section 76104.7 deoxyribonucleic state-only penalty can be imposed on a section 1465.8, subdivision (a)(1) court security fee. (People v. Valencia (2008) 166 Cal.App.4th 1392, 1395-1396.)
The judgment is reversed insofar as it imposes a $20 Government Code section 76104.7, subdivision (a) deoxyribonucleic acid state-only penalty. The judgment is modified to reflect 129 days of custody credit. Upon remittitur issuance, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.) The judgment is affirmed in all other respects.
We concur:
MOSK, J.
KRIEGLER, J. --------------- Notes: All further statutory references are to the Penal Code except where otherwise noted.