Opinion
F059468
08-01-2011
THE PEOPLE, Plaintiff and Respondent, v. NATHAN CLAUDE MATTHEWS, Defendant and Appellant.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VCF225519)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., Kane, J.
APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara, Judge.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Nathan Claude Matthews, on three counts of assault with a deadly weapon (counts 1-3/Pen. Code, § 245, subd. (a)(1)). In a separate proceeding, the court found true a serious felony enhancement in each count (§ 667, subd. (a)(1)), five prior prison term enhancements (§ 667.5, subd. (b)), and allegations that Matthews had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code.
On January 28, 2010, the court struck one prior prison term enhancement and sentenced Matthews to an aggregate term of 15 years as follows: the middle term of three years on count 1, doubled to six years because of Matthews's prior strike conviction, a five-year serious felony enhancement, concurrent terms that included a five-year serious felony enhancement on each of the remaining two counts, and four one-year prior prison term enhancements.
On appeal, Matthews contends: 1) the court exceeded its jurisdiction when it imposed a serious felony enhancement in counts 2 and 3; 2) the court erred in calculating his presentence conduct credit pursuant to section 2933.1; and 3) he is entitled to an additional day of presentence actual custody credit. We will find merit to these contentions and modify the judgment accordingly. In all other respects, we will affirm.
FACTS
On August 8, 2009, at approximately 11:30 p.m., after stopping at a gas station Mychal Young, Kiian Wood, and Tyrone Sayles walked to a taco truck parked at the station to place an order. While they waited for their food, Wood began arguing with Rammise Rhodes, who was accompanied by Matthews. The argument continued as Wood's group walked back to the gas pumps, but Rhodes eventually got in the backseat of her Chevy Cobalt. As the Cobalt was driving off, Wood spit on Rhodes through an open window. Rhodes then jumped out of the car and punched Wood. Wood responded by punching Rhodes in the face, knocking one of her teeth out and causing her to run into the store at the gas station. Matthews then got in the driver's seat of Rhodes's car, made a U-turn and drove into Wood's group, striking Young and Wood. The impact tore some muscles in Young's legs and caused a hip contusion. Wood injured his shoulders and right leg, causing him to miss work for approximately six weeks. Wood later identified Matthews from a photo lineup as the driver of the car that hit him and Young.
DISCUSSION
The Serious Felony Enhancement
The serious felony enhancement imposed in each count was based on Matthews's 1989 robbery conviction. Thus, according to Matthews, the court erred when it imposed a concurrent serious felony enhancement in counts 2 and 3. Respondent concedes and we agree.
"In People v. Tassell (1984) 36 Cal.3d 77, ... [the Supreme Court] held that when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense. [Citation.]" (People v. Williams (2004) 34 Cal.4th 397, 400, fn. omitted.) In accord with Tassell and Williams, we agree with the parties that the trial court erred when it imposed a serious felony enhancement in counts 2 and 3.
Matthews's Presentence Custody Credit
The trial court awarded Matthews presentence custody credit of 197 days consisting of 172 days of presentence actual custody credit and 25 days of presentence conduct credit. The court calculated Matthews's presentence conduct credit pursuant to section 2933.1 which limits conduct credit for certain defendants to 15 percent. Matthews contends the court erred by calculating his presentence conduct credit pursuant to section 2933.1. We agree.
Section 2933.1, in pertinent part, provides:
"(a) 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.
"[¶]. . . . [¶]
"(c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
Assault with a deadly weapon is not one of the violent felonies listed in section 667.5, subdivision (c). Therefore, the court erred in calculating Matthews's presentence conduct credit pursuant to section 2933.1.
The Additional Day of Actual Custody Credit
Matthews contends he is entitled to an additional day of presentence custody credit. Again, we agree.
Matthews was arrested in this matter on August 9, 2009, and remained in custody through the date of his sentencing on January 28, 2010. He was thus entitled to 173 days of presentence actual custody credit. Further, based on the 173 days he served in presentence custody, the court should have awarded him 86 days of presentence conduct credit (173 days ÷ 4 = 43.25 days; 43 days x 2 = 86 days) and a total of 259 days of presentence custody credit (173 days + 86 days = 259 days).
DISPOSITION
The serious felony enhancements in count 2 and 3 are stricken and Matthews's award of presentence custody credit is increased from 197 days to 259 days as calculated above. The trial court is directed to issue an amended abstract of judgment consistent with this opinion which also indicates in section 14 that Matthews's presentence custody credit was calculated pursuant to section 4019 and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.