IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PETER MICHAEL TRUDEAU, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F08049)
The opinion of the court was delivered by: Raye , P. J.
P. v. Trudeau
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Peter Michael Trudeau pleaded no contest to first degree robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A) -- count one) and admitted that a principal was armed with a firearm in the commission of the offense (Pen. Code, § 12022, subd. (a)(1)). In exchange, seven related counts and enhancing allegations were dismissed. Defendant was sentenced to state prison for seven years, awarded 34 days' custody credit and four days' conduct credit, and ordered to pay a $1,400 restitution fine (Pen. Code, § 1202.4), a $1,400 restitution fine, suspended unless parole is revoked (Pen. Code, § 1202.45), a $10 theft fine (Pen. Code, § 1202.5), a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), a $270.17 main jail booking fee, and a $51.34 main jail classification fee (Gov. Code, § 29550.2).
Defendant requested this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We shall modify the judgment.
On October 31, 2009, Trung Dang heard a loud thump on the front door of his residence. When he looked out the door, he saw co-defendant Christopher Bonner kick open the door and force his way inside, followed by co-defendant Melvin Ross, who was carrying a handgun. Trung ran toward the kitchen, where his mother, Lynne Dang, was cooking.*fn2 Bonner grabbed a kitchen knife, struck the knife's handle against Trung's head, and repeatedly asked, "Where's the stuff? We know what your cousin said. You have the stuff here. Don't lie to us." Bonner directed Trung and Lynne to lie face down on the kitchen floor, put the knife to Trung's throat, and demanded to know where the "stuff" was. Bonner struck the knife blade against the back of Trung's head and kicked him several times.
Trung was able to see Bonner and Ross. They were dressed entirely in black. Trung and Lynne heard a third man rummaging through the house. Eventually, one of the robbers yelled out that he had found the safe in Trung's parents' bedroom and demanded that Lynne give him the combination.
When Lynne refused, Bonner began hitting her, pulled her 18-carat necklace off of her, and threatened to kill Lynne and Trung if the safe was not opened. When Ross pointed the handgun at Lynne and uttered the same threat, she opened the safe. Ross reached inside the safe and grabbed a bag that contained passports and other important documents.
Bonner demanded that Trung give him his car keys and dragged him into a bedroom, where he kicked Trung several times, placed the kitchen knife up to his throat, and threatened to kill him if he did not give up the "stuff." Trung gave Bonner his wallet, which contained $60 cash.
Trung's father, Ai Dang, was in the backyard feeding dogs when he heard a loud noise and saw Bonner and Ross, dressed in black and standing next to Lynne and Trung. Ai jumped over a side gate and fled to a neighbor's yard to call police.
Police searched the area. A neighbor directed them to the backyard of a residence. As an officer looked over a fence he saw Bonner, dressed in black, run out of the neighbor's house and jump over the back fence. The officer ordered Bonner to lie on the ground, and he complied. During the ensuing search of his person, officers found Lynne's necklace. In the backyard of the victims' residence, officers found the kitchen knife that Bonner had used.
Neighbors reported seeing a second man run through the backyard of another residence. With assistance from a police dog, officers found Ross hiding in a shed in a neighbor's backyard. Officers found a black nylon stocking and black glove next to Ross.
Some time later, defendant was found hiding inside an air duct vent in the attic of victim Casey Sadler's residence. Defendant admitted breaking into the Sadler residence and hiding there, explaining that he was a "parolee-at-large" who did not want to return to prison. He admitted taking a nap and a shower inside the Sadler residence and dressing in the victim's clothing. However, he denied any involvement in the Dang robbery and did not make any additional statements.
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. (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.
Our review of the record discloses that defendant is entitled to additional custody and conduct credit.*fn3 On the date of his plea, October 7, 2010, defendant waived his presentence credits "up until today."*fn4 Thus, defendant was entitled to custody credit from October 7, 2010, through sentencing on November 10, 2010, a period of 35 days. Because defendant's conduct credit is calculated pursuant to Penal Code section 2933.1, his 35 days' custody credit entitle him to five days' conduct credit.
In May 2011 defendant's appellate counsel raised these credit calculation issues in a letter to the trial court; this court has not received any response to the letter. We shall modify the judgment accordingly.
As appellate counsel noted in her letter to the trial court, part 1 of the abstract of judgment erroneously states that defendant was sentenced to the upper term of imprisonment, not the middle term.
In addition, part 7 of the abstract erroneously omits a portion of the statutory authority for the booking and classification fees. (Gov. Code, § 29550.2.) These errors must be corrected on the amended abstract.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to award defendant 35 days' custody credit and five days' conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the middle term of imprisonment, the modified custody and conduct credits, and the statutory basis of the booking and classification fees. The trial court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BUTZ , J. MAURO , J.