People v. Robey CA4/3

Filed 10/9/14 P. v. Robey CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049074

v. (Super. Ct. No. 11NF3109)

JOSHUA ALLEN ROBEY, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Dismissed. Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant was convicted of the torture and attempted murder of an infant. At his sentencing hearing, the court ordered that he receive actual custody credits, but made no mention of conduct credits. Defendant appeals, contending the court erred in failing to award conduct credits. The Attorney General asserts this appeal must be dismissed for defendant’s failure to file a Penal Code section 1237.1 motion in the trial court.1 The Attorney General is correct. The appeal is dismissed, without prejudice to defendant’s filing of a section 1237.1 motion in the trial court. I FACTS At the sentencing hearing, the court stated that it had read and considered the probation report. It sentenced defendant to life in prison on count 1, attempted murder (§§ 187, subd. (a), 664, subd. (a)), and life in prison on count 2, torture (§ 206), with the sentence on count 2 stayed pursuant to section 654. It also sentenced defendant to six years on count 3, child abuse (§ 273a, subd. (a)), with the sentence stayed. In addition, the court sentenced defendant to six years with respect to the section 12022.7, subdivision (d) enhancement pertaining to count 1, to run consecutively to the life sentence. The court ordered a custody credit of 710 actual days and confirmed with defendant’s counsel that 710 actual days was the correct number of days for the custody credit. Neither the court nor counsel for either party addressed the matter of conduct credits at the hearing.