People v. Schrubb CA3

Filed 11/27/24 P. v. Schrubb CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C099440

Plaintiff and Respondent, (Super. Ct. No. 62034687B)

v.

KEVIN RAY SCHRUBB,

Defendant and Appellant.

This is a case about conduct credits in which the People properly concede error. Defendant Kevin Ray Schrubb was convicted in 2004 of charges related to an armed bank robbery and sentenced to prison for 340 years to life. In 2023, defendant was resentenced pursuant to Penal Code section 1172.75 to 125 years to life plus 4 years. Undesignated statutory references are to the Penal Code. On appeal, defendant contends the trial court erred in updating his conduct credits to include the time he served in prison. We modify the judgment to correct the conduct and total credit determinations and affirm the judgment as modified.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant participated in the armed robbery of a local bank on March 17, 2003. In 2004 a jury convicted him of conspiracy to commit robbery, 5 counts of second degree robbery, 11 counts of assault with a semiautomatic firearm, unlawful taking or driving of a vehicle, and felony evading an officer. The jury also found true enhancements for personal use of a firearm and principal armed with a firearm, as well as allegations of two prior serious and violent felony convictions (§ 667, subd. (a)(1)), two strikes, and five prior prison terms (former § 667.5, subds. (a), (b)). (People v. Schrubb (Jan. 13, 2016, C077295) [nonpub. opn.].) In November 2004, the trial court sentenced defendant to 340 years to life in prison and awarded 688 days of custody credit (599 days of actual credit plus 89 days of conduct credit). This court affirmed the judgment. (People v. Schrubb (Dec. 7, 2005, C048225) [nonpub. opn.].) The trial court resentenced defendant in August 2016 to prison for 129 years to life plus 4 years determinate. The court awarded 5,630 days of custody credit (4,896 days of actual credit and 734 days of conduct credit). In August 2022, the trial court found that defendant’s sentence included enhancements for prior prison terms pursuant to former section 667.5, subdivision (b) and defendant was entitled to resentencing under section 1172.75. During the July 2023 resentencing hearing, the court denied defendant’s motion to dismiss his prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court also declined to dismiss the firearm enhancements, but it did strike the associated punishment. The court dismissed the prior serious felony enhancements (§ 667, subd. (a)(1)) and the prior prison term enhancements (former § 667.5, subdivision (b)). The court imposed a 125-years-to-life indeterminate term plus a 4-year determinate term. The court awarded 8,558 days of custody credit (7,442 days of actual credit and 1,116 days of conduct credit). This custody credit is reflected on the abstract of judgment.