P. v. Sheppard

Filed 11/28/05 P. v. Chatman CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. KEVIN CHATMAN, Defendant and Appellant.

H027893 (Santa Clara County Super. Ct. No. CC306698)

Defendant Kevin Chatman appeals from a judgment entered after a jury found him guilty of five counts of transportation, sale, or distribution of a controlled substance (Health & Saf. Code, § 11379, subd. (a), counts 1-5) and one count of possession of a controlled substance (Health & Saf. Code, § 11378, count 6). We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.

Defendant was arrested following a “sting” operation at a local bar. He was charged by information with the six counts noted above and one count of petty theft with a prior. (Pen. Code, § 666.)[1] The information also alleged eight prior “strikes” (§§ 667, subds. (b)-(i), 1170.12), three prison priors (§ 667.5, subd. (b)), and one prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). The jury found defendant not guilty of the petty theft count and guilty of the other six counts charged. Defendant admitted the prior conviction allegations.

The trial court at first denied defendant’s Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), struck the prison priors and the Health and Safety Code enhancement, and sentenced defendant to 150 years to life in state prison. The court awarded defendant credit for 422 days actually served and 210 days credit pursuant to section 4019. The trial court then reconsidered its decision and recalled the sentence on its own motion. As permitted by People v. Garcia (1999) 20 Cal.4th 490, the court exercised its discretion under section 1385, subdivision (a), and struck all the prior strike allegations with respect to the counts 1 through 5 and struck six of the eight strike allegations with respect to count 6. The court sentenced defendant to 25 years to life on count 6, imposed the midterm of three years for each of the first five counts, and ordered the determinate terms to run concurrent to the life term. The court also struck the additional punishment authorized by the remaining enhancements and awarded defendant 537 days credit for time served but denied him credit under section 4019, citing In re Cervera (2001) 24 Cal.4th 1073.

Defendant’s appellate counsel noted that the trial court had improperly relied upon In re Cervera to deny defendant the custody credit allowed by section 4019 because In re Cervera involved post conviction credits authorized by section 2930 et seq. (In re Cervera, supra, 24 Cal.4th at p. 1078) and not the preconviction credits authorized by section 4019. Counsel brought the error to the trial court’s attention. The probation department evaluated the question of custody credits and noted in the process that defendant’s sentence, in which the terms for the first five counts were to run concurrent to the indeterminate life term, was an unauthorized sentence. (People v. Casper (2004) 33 Cal.4th 38, 40.) Casper held that the Three Strikes Law required the trial court to sentence a defendant consecutively on all such counts. (Ibid.) After hearing the argument of counsel, the trial court modified the sentence to impose a term of one year (one-third the midterm) for each of the first five counts. The resulting sentence is a term of 25 years to life consecutive to five years. The court added 210 days of credit pursuant to section 4019.

Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record. We conclude that there is no arguable issue on appeal.

The judgment is affirmed.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Bamattre-Manoukian, J.

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[1] All further unspecified statutory references are to the Penal Code.