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The People v. Keymah Zubah Mcneal

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


July 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEYMAH ZUBAH MCNEAL, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62081517)

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

P. v. McNeal

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On October 8, 2008, defendant Keymah Zubah McNeal was charged with transportation of a controlled substance (hydrocodone) (count one); possession of a controlled substance (hydrocodone) (count two); transportation of a controlled substance (cocaine) (count three); possession of a controlled substance (cocaine) (count four); possession of a deadly weapon (count five); misdemeanor possession of marijuana (count six); and misdemeanor driving when privilege suspended or revoked (count seven). As to counts one through five, it was alleged that defendant had a prior strike conviction and served a prior prison term.

On August 31, 2010, defendant pled no contest to count four and admitted the strike allegation in return for a sentence of two years eight months (the low term doubled). He also waived his rights to appeal the plea and to receive a presentence probation report.

The stipulated factual basis of the plea was as follows: On or about June 25, 2008, defendant was found in Placer County in possession of a usable amount of cocaine. On or about March 28, 2000, defendant had a strike conviction for robbery in Sacramento County.

The trial court imposed the agreed-upon sentence of two years eight months. The court also imposed a $600 restitution fine and a suspended $600 restitution fine. The court awarded 223 days of presentence custody credit (149 actual days plus 74 conduct days); however, defendant's counsel questioned that calculation.

On September 16, 2010, defendant's counsel submitted a request to calendar the matter for the purpose of modifying the award of presentence custody credits. According to counsel's calculation, defendant was entitled to 309 days of custody credit (155 actual days plus 154 conduct days). In other words, counsel presumed that defendant was entitled to the benefit of the amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners could earn presentence conduct credits.

In response to the trial court's request for a "credit for time served update," on October 1, 2010, the probation officer submitted a calculation of presentence custody credits due. According to this calculation (which accepted defense counsel's assumption as to Penal Code section 4019), defendant was now entitled to a total of 341 days of presentence credit (171 actual days plus 170 conduct days).

On October 4, 2010, the trial court amended its award of presentence custody credits to 341 days (171 actual days plus 170 conduct days), as calculated by the probation officer. On November 17, 2010, the court entered a new abstract of judgment reflecting this amended credit award (stated as "through 9/16/10").

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 now conclude that the amended award of presentence custody credits is incorrect. Defendant was not entitled to the benefit of the amendments to Penal Code section 4019 effective January 25, 2010, because he was previously convicted of robbery, a violent felony.*fn1 Therefore we must remand the matter for a recalculation of defendant's presentence custody credits omitting those additional credits.

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

DISPOSITION

The matter is remanded for recalculation of defendant's presentence custody credits as described above. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: BUTZ ,J. DUARTE ,J.


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