The People v. Thompson CA3

Filed 9/20/13 P. v. Thompson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C072305

Plaintiff and Respondent, (Super. Ct. No. 11F08007)

v.

MOSES THOMPSON,

Defendant and Appellant.

Appointed counsel for defendant Moses Thompson has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.1 (People v. Wende (1979) 25 Cal.3d 436.) We find an error in the calculation of conduct credits that requires modification of the judgment. We affirm the judgment as modified.

1 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.

1

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) On November 25, 2011, defendant broke into 66-year-old Thomas McCartey’s apartment and began punching him in the face and body. When McCartey fell to the ground, defendant continued his attack by stomping on him. Defendant then fled out the back window. McCartey suffered an orbital and nasal fracture as a result of the attack. Shortly after the attack, McCartey’s friend, Celeste,2 came over to visit. She found McCartey on the floor crying out for help, called 911, and handed the phone to McCartey. While McCartey was on the phone, defendant returned, blocked Celeste in the bathroom and demanded she orally copulate him. When she did not immediately comply, he punched her in the face. Celeste responded by getting down on her knees, whereupon defendant forced her head down and put his penis in her mouth. When defendant attempted to close the bathroom door, Celeste feared he would kill her and took the opportunity to run. After a struggle, she managed to get away. Police officers, responding to the 911 call, arrested defendant outside McCartey’s apartment. Defendant admitted to entering McCartey’s apartment, physically assaulting McCartey, and forcing Celeste to orally copulate him. Defendant was charged with oral copulation by force (Pen. Code, § 288a, subd. (c)(2)),3 two counts of first degree residential burglary (§ 459), assault upon McCarty by means likely to produce great bodily injury (§ 245, subd. (a)(1)) and having personally inflicted great bodily injury (§ 12022.7), violation of Celeste’s personal liberty (§ 236), and assault upon Celeste by means likely to produce great bodily injury (§ 245, subd. (a)(1)).