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The People v. Thomas Baker

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THOMAS BAKER, DEFENDANT AND APPELLANT.

(Super. Ct. No. 08F00793)

The opinion of the court was delivered by: Blease , Acting P.J.

P. v. Baker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Thomas Baker asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall order a correction to the abstract and affirm.

FACTS AND PROCEDURAL HISTORY

On January 29, 2009, around 8:45 p.m., Donald Story, Kyle Bauer, and Mark Madewell went to an AM/PM convenience store to buy soda and cigarettes. As they left, Story noticed three men, one White, one African-American, and one Hispanic. Bauer spoke with the men, who then followed Story, Bauer, and Madewell. Story, Bauer, and Madewell ran; the three men pursued, yelling they had "bangers," a euphemism for guns.

Story tried to climb through a hole in a fence, but tripped, and was caught by the White man after he tripped. The White man walked Story across the parking lot, accompanied by the Hispanic man and the African-American man. The African-American man showed Story a revolver, and said "I got bangers." They ended up in a parking garage about 200 yards away.

Defendant joined the group as they walked through the parking lot. Defendant, the White male, and the African-American male then passed the gun among themselves. At one point, the White man pointed a gun at Story, and asked him what he had and where he lived. The White man held Story against a wall, went through his wallet and took the contents, which were distributed through the group. Defendant also asked Story where he lived.

Another African-American man appeared on the scene. Defendant held the gun while he and the new man went to look for Story's friends.

Madewell approached the scene from the direction of Story's apartment. The White man put him up against a wall and asked him what he had. Madewell replied he had nothing. Defendant asked Madewell why he was smiling, and hit him in the face.

Police arrived, and all the men fled except for defendant and the Hispanic man. Defendant and another man were detained at the scene.

Following a jury trial, defendant was convicted of second degree robbery (Pen. Code, § 211; subsequent undesignated statutory references are to the Penal Code) while armed with a firearm (§ 12022, subd. (a)(1), and misdemeanor battery (§ 242). Defendant admitted a prior strike allegation. The court denied his motion to dismiss the strike, sentenced defendant to seven years in prison, imposed various fines and fees, and awarded 825 days of presentence custody credit, consisting of 718 days' actual time and 107 days' conduct credit. (§ 2933.1.)*fn1

Defendant appeals.

DISCUSSION

Appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We have found an error in the abstract. The abstract states defendant is to receive 823 days' presentence credit, consisting of 716 days' actual time and 107 days' conduct credit. The abstract of judgment requires correction to reflect the credit actually awarded by the court -- 718 actual days and 107 conduct days, for a total of 825 days of presentence custody credit. We will direct the trial court to correct the abstract of judgment accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting 718 actual days and 107 conduct days, for a total of 825 days' presentence credit, and to forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: HULL , J. ROBIE,J.


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