P. v. Meyers CA1/4

Filed 3/7/13 P. v. Meyers CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A132787 v. LOUIS MEYERS, (San Francisco County Super. Ct. No. 212059) Defendant and Appellant.

Defendant Louis Meyers was convicted of attempted grand theft and sentenced to five years in state prison. On appeal, he contends that the trial court denied his right to make a personal statement in mitigation at sentencing. He also contends that he is entitled to additional presentence conduct credits, based either on the law in effect when he was sentenced, or the retroactive application of the current conduct credit scheme. We agree Meyers is entitled to additional conduct credits. In all other respects, however, we affirm the judgment. I. BACKGROUND On February 14, 2010, Meyers walked into a bar in San Francisco where the owner was counting the receipts from the previous night. Meyers grabbed some of the money. The bar owner tried to stop him and a struggle ensued. Meyers eventually dropped or threw down the money and left the bar empty-handed. The police, responding to a 911 call, apprehended Meyers.

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The district attorney charged Meyers with attempted second degree robbery (Pen. Code, §§ 664, 211).1 The information alleged two prior serious felony strike convictions (§§ 667, subds. (d), (e); 1170.12, subds. (b), (c)) and nine prior felony convictions for which Meyers had served prison terms (§ 667.5, subd. (b)). A jury found Meyers guilty of the lesser included offense of attempted grand theft (§§ 664, 487). Regarding the prior conviction allegations, the parties entered into a stipulation whereby the district attorney agreed to dismiss one of the strike allegations, and Meyers agreed to admit all of the remaining prior conviction allegations, including one strike. The court then sentenced Meyers to five years in prison by imposing the middle term (one year) for the attempted grand theft conviction, doubling it based on the prior strike conviction, and adding three one-year enhancements for three of the prior prison term felonies. The court dismissed the remaining prior prison term enhancements. The trial court awarded Meyers 111 days of local (presentence) conduct credits based on Meyers’s actual custody time of 503 days. In calculating the conduct credits, the court explained “he has to serve 80 percent because it’s a strike.” II. DISCUSSION A. Right to Make Personal Statement in Mitigation Meyers correctly contends he has a right to make a sworn personal statement in mitigation of punishment. (See People v. Evans (2008) 44 Cal.4th 590, 598-599; see also § 1204.) Contrary to Meyers’s argument, however, the record reveals he was afforded that right. Meyers and his counsel appeared in court on May 20, 2011, after the jury verdict and after he had admitted the priors. The court indicated it was prepared to sentence Meyers, but ultimately only decided Meyers’s motion to dismiss the remaining strike pursuant to section 1385 (People v. Romero (1996) 13 Cal.4th 497). Defense counsel proposed to have Meyers sworn in to testify in connection with the Romero motion. Counsel made the following offer of proof: Meyers would explain “his prior actions” and