P. v. McBride CA3

Filed 6/18/13 P. v. McBride CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer)

THE PEOPLE, C071880

Plaintiff and Respondent, (Super. Ct. No. 62-111663)

v.

BENJAMIN EMMANUEL MCBRIDE,

Defendant and Appellant.

A jury convicted defendant Benjamin Emmanuel McBride of two counts of receiving a stolen vehicle (counts 1 & 2; Pen. Code,1 § 496d). The offense charged in count 1 occurred on or about December 8, 2011; the offense charged in count 2 occurred on or about January 18, 2012. In a bifurcated proceeding, the trial court found that defendant had incurred one strike (§§ 667, subds. (b)-(i), 1170.12) and one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to six years four months in state prison (two years on count 1, doubled for the strike, plus 16 months consecutive on count 2, plus one

1 Undesignated section references are to the Penal Code.

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year consecutive for the prior prison term enhancement). The court awarded 161 days of presentence custody credit (135 days of actual credit and 26 days of conduct credit). The court orally imposed fines and assessments including a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40 court security assessment (§ 1465.8, subd. (a)(1)). However, the abstract of judgment gives the amount of the criminal conviction assessment as $40. Defendant contends (1) he is entitled to day for day conduct credit, and (2) the $40 criminal conviction assessment shown in the abstract of judgment should be reduced to $30, the amount stated orally by the trial court. The People agree with defendant’s first point. They contend, however, that the criminal conviction assessment should be $60 because the assessment (in the amount stated by the trial court) should have been imposed as to both counts 1 and 2. They also contend that, for the same reason, the $40 court security assessment should have been $80. We shall remand the matter with directions to the trial court to award defendant day for day conduct credit and to impose a $60 criminal conviction assessment and an $80 court security assessment. We shall affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND Because defendant’s contentions do not implicate the facts of his crimes, we recount them briefly. Freda B. and her daughter bought a 1991 Honda Accord from Ashley H. in 2010, agreeing to pay in installments. Defendant is the father of Ashley H.’s daughter. Ashley H. testified that she transferred the car’s title to Freda B. in February 2011. Ashley H. denied that she had ever signed a document selling the car to defendant. On the evening of December 7, 2011, Freda B. parked the car in front of her home and locked it. The next morning it was missing.