People v. Johnson CA2/6

Filed 6/17/15 P. v. Johnson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B257770 (Super. Ct. No. F439849001) Plaintiff and Respondent, (San Luis Obispo County)

v.

NATHANIEL JOHNSON, JR.,

Defendant and Appellant.

Nathaniel Johnson, Jr., appeals from a postjudgment order denying his motion to correct an error in the calculation of presentence custody credits. (Pen. Code, § 1237, subd. (b).)1 We reverse. Factual and Procedural Background In February 2010 appellant was convicted by a jury of three counts of robbery (§ 211) and one count of first degree residential burglary. (§§ 459, 460, subd. (a).) Two of the robberies were committed on January 6, 2008. The residential burglary was committed on October 22, 2008. The third robbery was committed six days later on October 28, 2008. On the latter date appellant was arrested inside his apartment, where the police recovered some of the items taken during the burglaries and a backpack taken from the victim of the third robbery.

1 Unless otherwise stated, all statutory references are to the Penal Code.

On two of the robbery counts, the jury found true an allegation that appellant had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) The trial court found true allegations of one prior serious felony conviction (§ 667, subd. (a)(1)), one prior prison term (§ 667.5, subdivision (b)), and one prior serious or violent felony conviction within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to prison for 24 years, 8 months. He appealed to this court from the judgment. He did not raise the issue of presentence custody credits. In an unpublished opinion, we modified the judgment by striking a one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b). We affirmed the judgment as modified. (People v. Johnson, Jr. (May 16, 2011) 2d Crim. No. B223724.) We take judicial notice of our unpublished opinion, including the recitation of the facts underlying appellant's crimes. (Evid. Code, §§ 452, subd. (d), 459.) The trial court gave appellant credit for 311 days of presentence custody, consisting of 270 actual days and 41 days of conduct credit. The court relied on the probation report's statement that appellant had been in actual custody from October 28 to November 10, 2008, and from July 25, 2009 until sentencing on April 6, 2010. The gap between November 10, 2008 and July 25, 2009 was due to a violation of appellant's parole. Appellant was initially placed on parole on May 10, 2007. On October 28, 2008, he was arrested for the residential burglary and third robbery in this case, and a parole hold was placed against him. On November 10, 2008, he was returned to state prison. On November 17, 2008, his parole was revoked and he was recommitted to prison for a term of nine months. On July 25, 2009, he was transported from state prison to county jail, where he was arrested for the two robberies committed on January 6, 2008. In May 2014 appellant moved for credit for the 256 days of presentence custody between November 10, 2008 and July 25, 2009.2 The trial court denied the motion. In a