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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

BENJAMIN EMMANUEL MCBRIDE,

Defendant and Appellant.

C071880

(Super. Ct. No. 62-111663)

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.
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About a month later, Roseville Police Officer Andrew Bonner found the car 

(reported stolen) parked on a street with the engine still warm and ticking; defendant’s 

personal effects were inside. Defendant’s mother told Officer Bonner that defendant had 

recently been driving a Honda Accord and pointed out where defendant parked. The car 

was returned to Freda B.

On January 17, 2012, Freda B. parked the car on the street and locked it. The next 

morning it was missing.

A week later, Officer Bonner discovered that the Honda Accord was again on the 

stolen-car list. He found the car parked outside defendant’s apartment building. Spotting 

defendant inside his apartment, Officer Bonner executed an arrest warrant on him.

Searching defendant’s apartment, officers found a Department of Motor Vehicles 

document purporting to show that Ashley H. had sold the car to defendant on “December 

12th, 20[unintelligible].” Ashley H.’s purported signature on the document did not match 

a signature known to be hers.

Defendant testified on his own behalf. He claimed that Freda B. never paid the 

full purchase price for the car. He loaned her money in return for the temporary use of 

the car and they shared it for a few months, but she never repaid the loan.

DISCUSSION

I

The parties agree that the trial court erred by failing to award defendant day for

day presentence conduct credits. We agree with the parties.

Under section 4019, as amended operative October 1, 2011, all persons sentenced 

to prison for crimes committed on or after that date are entitled to two days of 

presentence conduct credit for each two days of actual presentence custody. (§ 4019, 

subds. (b), (c), (h).) Because defendant’s crimes were committed after October 1, 2011, 

he gets the benefit of the current version of section 4019. Therefore, the trial court 
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should have awarded him 134 days of presentence conduct credits. On remand, the court 

is directed to prepare an amended abstract of judgment reflecting the correct credit award.

II

As mentioned above, the trial court imposed a $30 criminal conviction assessment 

(Gov. Code, § 70373), but the abstract of judgment shows the amount as $40. Relying on 

the rule that the oral pronouncement of judgment controls over the abstract of judgment 

(People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416; see People v. Mesa (1975) 

14 Cal.3d 466, 471-472), defendant contends that this court must reduce the assessment 

to $30.

The People agree that the assessment should be $30, but contend that the trial 

court erred by failing to impose that assessment as to both counts of which defendant was 

convicted; therefore, they maintain, the total assessment should be $60. For the same 

reason, they contend that the $40 court security assessment imposed by the trial court 

(§ 1465.8) should be increased to $80. We agree with the People.

Government Code section 70373, subdivision (a)(1), provides in part that a 

criminal conviction assessment of $30 shall be imposed on every felony conviction. 

Penal Code section 1465.8, subdivision (a)(1), provides (with an exception not relevant 

here) that a court security assessment of $40 shall be imposed on every conviction of any 

criminal offense. Thus, both assessments are mandatory for every felony of which a 

defendant is convicted. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484 

(Sencion).) The trial court should have imposed both assessments as to both counts.

On remand, the oral pronouncement of sentence shall be corrected to show a 

criminal conviction assessment of $60 (Gov. Code, § 70373) and a court security 

assessment of $80 (§ 1465.8). (Sencion, supra, 211 Cal.App.4th at p. 485.) The 

amended abstract of judgment shall show these assessments.
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DISPOSITION

The matter is remanded to the trial court with directions to award defendant 134 

days of presentence conduct credit, to impose a criminal conviction assessment of $60 

and a court security assessment of $80, and to prepare an amended abstract of judgment 

which shows these modifications of the sentence. As modified, the judgment is affirmed.

 BLEASE , Acting P. J.

We concur:

 BUTZ , J.

 MAURO , J.