Opinion
B228526
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ROBINSON, Defendant and Appellant.
Amy Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA071870)
APPEAL from a judgment of the Superior Court of Los Angeles County, Janice Claire Croft, Judge. Affirmed as modified.
Amy Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Robert Robinson, appeals the judgment entered following his plea of no contest to attempted murder and burglary, with a prior serious felony conviction finding (Pen. Code, §§ 664/187, 459, 667, subds. (a)-(i)). He was sentenced to state prison for a term of 17 years.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Because there was no trial, and given the issues raised on appeal, only the most cursory factual statement is provided.
On July 13, 2007, there was a burglary at the home of Sarah Engstrom. In addition to other items, the burglar took prescription drugs belonging to both Engstrom and her husband.
Subsequently, Robinson tried to sell Albert Ramirez a computer and prescription drugs he said came from Engstrom's house. Robinson also said he was going to return to Engstrom's house and kill her.
On October 30, 2007, Engstrom was home when she heard a noise downstairs. When she went to investigate, defendant Robinson grabbed her and threw her down a flight of stairs. A struggle ensued, but Engstrom broke free and ran out the front door, where she started to scream. Robinson then jumped on top of her and stabbed her.
CONTENTIONS
1. The trial court miscalculated Robinson's presentence custody credits.
2. The abstract of judgment contains a clerical error.
DISCUSSION
1. Robinson's presentence custody credits were miscalculated.
As the Attorney General properly concedes, Robinson's presentence custody credits were miscalculated. "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 647; see also People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 ["The failure to award an adequate amount of credits is a jurisdictional error which may be raised at any time."].)
Robinson was arrested on January 21, 2008, and sentenced on August 19, 2010. For this period of time, he was entitled to 942 actual days of presentence custody credit, not 941 days. (See People v. Morgain (2009) 177 Cal.App.4th 454, 469 ["defendant is entitled to credit for the date of his arrest and the date of sentencing"]; People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day].) In addition, he was entitled to accrue 15 percent of those actual days as conduct credit under section 2933.1. Fifteen percent of 942 is 141 days, for a total of 1083 days presentence custody credit. We will order the judgment modified to correct this error.
2. Correct abstract of judgment.
Robinson contends, and the Attorney General agrees, there is an error in the abstract of judgment. The abstract erroneously reflects a conviction on count 5 for premeditated attempted murder rather than for simple attempted murder. We will order this error corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [it is proper and important to correct errors and omissions in abstracts of judgment].)
DISPOSITION
The judgment is affirmed as modified. Robinson is entitled to one additional day of actual presentence custody credit, along with the 141 days of conduct credit, for a total of 1083 days of presentence custody credit. In addition, the abstract of judgment is to be amended to correctly reflect a conviction for attempted murder, not premeditated attempted murder, on count 5. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.