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People v. Robinson

Court of Appeal of California
Apr 22, 2009
B210103 (Cal. Ct. App. Apr. 22, 2009)

Opinion

B210103.

4-22-2009

THE PEOPLE, Plaintiff and Respondent, v. JAYSON DAYVON ROBINSON, Defendant and Appellant.

Jeffrey Lewis, 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, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published in the Official Reports


INTRODUCTION

A jury convicted defendant and appellant Jayson Dayvon Robinson (defendant) of one count of assault with a firearm. (Pen. Code, § 245, subd. (a)(2)). The jury found true the special allegations that defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury on his victim (§ 12022.7, subd. (a)). The trial court sentenced defendant to a total of 10 years in state prison.

Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting that this court review independently the entire appellate record. We have done so. We conclude that the trial court miscalculated defendants presentence custody credit, and modify the judgment to correct that error. We affirm the judgment as modified.

BACKGROUND

Defendants uncle, William Roper III, operated a tree trimming and landscaping business. Defendant worked in Mr. Ropers business intermittently for four or five years.

On July 9, 2007, Mr. Roper and three crew members were working at the intersection of Myrrh Street and Ward Avenue in Compton. At approximately midday, defendant approached and asked Mr. Roper for work. Because defendant had opposed Mr. Roper in a family dispute, Mr. Roper refused. Defendant left.

Sometime later, Mr. Roper was preparing to fell a tree when he heard two or three "pops" that he thought were backfires from his crews machinery. Mr. Roper turned and saw that defendant had a handgun pointed at him. Mr. Roper ran for cover. Defendant fired more shots. Mr. Roper was hit first in the lower back, then in the upper inside of his left thigh. Defendant got into the passenger side of a red sport utility vehicle and fled.

The police and paramedics responded to the scene. Mr. Roper told police that his nephew, defendant, had shot him. Police recovered five spent shell casings.

Mr. Roper was hospitalized for two days. Doctors eventually were able to remove the bullet from Mr. Ropers leg, but they were unable to remove the bullet from his back.

Los Angeles County Sheriffs Department Detective Fernando Sarti testified that defendant remained at large until he was arrested in December of 2007, five months after the shooting. After his arrest, defendant was cooperative. Based on information provided by defendant, police recovered a .25 caliber semi-automatic handgun. Ballistic tests confirmed that the cartridge casings recovered from the scene had been fired by defendants handgun. The parties stipulated that the handgun was the weapon used by defendant on July 9, 2007.

Defendant was charged with one count of attempted willful, deliberate and premeditated murder (§§ 664/187, subd. (a)) (count 1) and one count of assault with a firearm (§ 245, subd. (a)(2)) (count 2). With respect to count 2, the information also alleged that defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury on Mr. Roper (§ 12022.7, subd. (a)).

All requested jury instructions were given without objection by defendant. In arguing the case to the jury, defendant did not dispute that he shot Mr. Roper. Rather, defendant argued that he did not intend to kill Mr. Roper and therefore was not guilty of attempted murder.

The jury was unable to reach a verdict on the attempted murder charge. The trial court declared a mistrial and dismissed that count. The jury convicted defendant of firearm assault on count 2 and found true the firearm and great bodily injury enhancements.

The trial court sentenced defendant to the mid term of three years for the firearm assault conviction. The trial court imposed a consecutive term of four years for the firearm enhancement, and a consecutive term of three years for the great bodily injury enhancement. The trial court also imposed a $1,000 restitution fine (§ 1202.4, subd. (b)(1)); a $1,000 parole revocation restitution fine, stayed (§ 1202.45); and a $20 court security fee. (§ 1465.8, subd. (a)(1).) The trial court ordered defendant to pay victim restitution pursuant to section 1202.4, subdivision (f), in an amount to be determined. Defendant was given 361 days of presentence credit, consisting of 241 days of actual custody and 120 days of conduct credit. Defendant timely appealed.

DISCUSSION

We appointed counsel to represent defendant on this appeal. After examining the record, appointed counsel filed an opening brief raising no issues, but requesting this court to review the record independently in accordance with Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. We received no response from defendant. Based on our independent review of the record, we requested and received additional briefing from the parties.

The trial court miscalculated defendants presentence credit. "[A] sentence is generally `unauthorized where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) We may correct an unauthorized sentence on direct appeal. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7; People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Smith (2001) 24 Cal.4th 849, 852.)

Generally, conduct credit is earned on presentence custody at the rate of six days for every four days of actual custody. (§ 4019, subds. (a)(4), (f); see People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Fabela (1993) 12 Cal.App.4th 1661, 1663-1664.) A defendant convicted of a violent felony, however, may not earn presentence conduct credit in excess of 15 percent of time spent in actual custody. (§ 2933.1, subds. (a), (c); People v. Buckhalter, supra, 26 Cal.4th at pp. 31-32.) Violent felonies include "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, . . . or any felony in which the defendant uses a firearm which use has been charged and proved as provided in . . . Section 12022.5 . . . ." (§§ 667.5, subd. (c)(8); 2933.1, subd. (a); see In re Pacheco (2007) 155 Cal.App.4th 1439, 1445-1446 [great bodily injury enhancement].)

In this case, the jury found true the special allegations that defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury on Mr. Roper (§ 12022.7, subd. (a)). As a result, defendant was convicted of a violent felony and his conduct credit cannot exceed 15 percent of his time in actual custody. Defendant spent 241 days in custody before he was sentenced. He is entitled to only 36 days of conduct credit, for a total of 277 days of presentence credit.

DISPOSITION

The judgment is modified to reflect that defendant is entitled to presentence credit of 277 days, consisting of 241 days of actual custody and 36 days of conduct credit. The judgment is affirmed as modified. The clerk of the superior court is directed to correct the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

We concur:

TURNER, P. J.

ARMSTRONG, J. --------------- Notes: All statutory references are to the Penal Code unless stated otherwise.


Summaries of

People v. Robinson

Court of Appeal of California
Apr 22, 2009
B210103 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Robinson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAYSON DAYVON ROBINSON, Defendant…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

B210103 (Cal. Ct. App. Apr. 22, 2009)