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The People v. Zachary David Macdonald

November 2, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ZACHARY DAVID MACDONALD, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F3289)

The opinion of the court was delivered by: Butz , J.

P. v McDonald

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Zachary David MacDonald was convicted of attempted second degree robbery and possession of a deadly weapon, a billy, with two deadly weapon enhancements. The trial court sentenced defendant to three years in state prison and awarded 278 days of presentence credits (209 actual and 69 conduct).

On appeal, defendant contends there is insufficient evidence to support his conviction for possession of a billy, and he is entitled to additional conduct credits pursuant to the 2011 Realignment Legislation (Realignment Act) (Stats. 2011, ch. 15, § 1) as a matter of equal protection under the law. In a supplemental brief, defendant contends the trial court incorrectly calculated his custody credits. Agreeing with the contention in defendant's supplemental brief, we shall modify the award of credits and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2011, Andrew Canfield was working as the clerk at a Circle K. At about 5:00 a.m., defendant entered the store carrying a bat and a knife and wearing a ski mask. He told Canfield, "empty the cash register, sir."

Canfield thought defendant was one of the other clerks playing a joke him. When he realized defendant was serious, Canfield picked up a mop and challenged defendant to a fight. Defendant put the knife in his pocket, took a pack of gum and a lighter, and left the store.

Canfield called 911 and described a vehicle, a green Ford Explorer, that defendant drove from the Circle K. Defendant was soon stopped by law enforcement while driving a green Ford Explorer. A black ski mask, some gum, a lighter and a sawed-off aluminum baseball bat were among the items found in defendant's Explorer. Canfield later made a field identification of defendant.

DISCUSSION

I. Possession of a Billy

Defendant contends there is insufficient evidence to convict him of possession of a billy because it must be made of wood and the bat in his ...


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