People v. Tatum CA3

Filed 4/15/21 P. v. Tatum CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE,

Plaintiff and Respondent, C091925

v. (Super. Ct. No. CH037474)

VICTOR TATUM,

Defendant and Appellant.

Appointed counsel for defendant Victor Tatum asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will affirm defendant’s convictions but remand the matter to the trial court for recalculation of presentence credit. I Defendant was serving a four-year prison sentence for an assault conviction in case No. CH034001 (the assault case) when, on April 2, 2019, he possessed a weapon (a sharp instrument) while incarcerated. The People charged defendant in case No. CH037474 with custodial possession of a weapon (Pen. Code, § 4502, subd. (a))1 (the custodial weapon case). It was further alleged that defendant had a prior strike

1 Undesignated statutory references are to the Penal Code.

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conviction (§ 667, subds. (b)-(i)). Defendant pleaded guilty as charged and admitted the prior strike conviction. The trial court sentenced defendant to two years in the custodial weapon case, to run consecutive to the prison sentence defendant was already serving in the assault case, and imposed minimum restitution and parole revocation fines. The trial court did not award defendant presentence credit in the custodial weapon case and did not discuss credit for the assault case. Defendant did not obtain a certificate of probable cause. II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant. After reviewing the record, we will affirm defendant’s convictions but remand the matter to the trial court for recalculation of presentence credit. Rule 4.452(a) of the California Rules of Court provides: “If a determinate sentence is imposed under section 1170.1[, subdivision] (a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1[, subdivision] (a), stating the result of combining the previous and current sentences.”2 In accordance with that