THE PEOPLE v. MARTESE TYREE GILLIAM (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

On July 10, 2007, at approximately 2:30 p.m., Juan Orozco was riding his bicycle on West Street in Fresno when appellant, Martese Tyree Gilliam, knocked him down with a six-foot long, one-inch by three-inch board and then continued striking him on the head.   Gilliam left the scene skipping as Orozco lay on the ground bleeding profusely from his head.   He was arrested by a deputy sheriff a short time later in a dirt field.

Orozco suffered multiple fractures to the skull and was transported to a local hospital for treatment.

On August 7, 2007, the district attorney filed an information charging Gilliam with assault with a deadly weapon (count 1/Pen.Code, § 245, subd. (a)(1)) ¹ and battery with serious bodily injury (count 2/ § 243, subd. (d)).  Count 1 also alleged a great bodily injury enhancement (§ 12022.7, subd. (a)).

On December 6, 2007, the court suspended criminal proceedings after finding that Gilliam was incompetent to proceed.

On January 3, 2008, the court committed Gilliam to Atascadero State Hospital.

On May 28, 2008, the Medical Director at Atascadero State Hospital issued a certification that Gilliam had regained his competency to stand trial.   On June 17, 2008, the court reinstated criminal proceedings.

On August 8, 2008, jury trial in this matter commenced.   Prior to the jury rendering a verdict, the prosecution dismissed count 2.

On August 13, 2008, the jury found Gilliam guilty of assault with a deadly weapon and found true the great bodily injury enhancement.

On September 30, 2008, the court sentenced Gilliam to an aggregate term of five years, the mitigated term of two years on his assault conviction and a three-year great bodily injury enhancement.   The court also awarded appellant 643 days of presentence custody credit consisting of 391 days of actual custody credit, 194 days of conduct credit and 58 days of treatment credit.

Gilliam's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Gilliam has not responded to this court's invitation to submit additional briefing.

However, our review of the record disclosed that the trial court erred in its award of presentence custody credit.   Gilliam was in local custody 274 days from the date of his arrest on July 10, 2007, through April 8, 2008, when he was transported to Atascadero Hospital for treatment to restore his competency to stand trial.   He spent 57 treatment days at the hospital before being returned to local custody on June 5, 2008, where he served an additional 118 days through the date of his sentencing on September 30, 2008.

Section 2933.1 limits conduct credit, including presentence conduct credit, to 15 percent for defendants convicted of violent felonies that are listed in section 667.5, subdivision (c). (§ 2933.1, subds.(a) & (b).)  Section 667.5, subdivision (c)(8) lists as a violent felony, “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7,․”  Since the jury here found true allegations that in assaulting the victim appellant inflicted great bodily injury within the meaning of section 12022.7, the court erred in awarding appellant one for two conduct credit pursuant to section 4019.

Further, excluding the 57 days Gilliam was in custody receiving treatment at Atascadero Hospital, Gilliam was in presentence custody a total of 392 days (274 days + 118 days = 392 days).   Thus, in accord with section 2933.1, we conclude that Gilliam is entitled to presentence conduct credit of only 58 days (392 days x 15% = 58.8 days) and presentence custody credit of only 507 days (392 actual custody days + 58 conduct days + 57 treatment days = 507 presentence custody credit days).

Further, following independent review of the record we find that with the exception of the credit issue discussed above, no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is modified to reduce Gilliam's award of presentence conduct credit from 643 days to 507 days as calculated above.   The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation.   As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.