Filed 11/25/13 P. v. Powe 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072192

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F00629)

         v.

ANDRE ANTHONY POWE,

                   Defendant and Appellant.




         A jury found defendant Andre Anthony Powe guilty of second degree murder and
unlawful possession of a weapon. The trial court sentenced defendant to a term of 43
years to life in prison. Defendant appeals the judgment, contending the trial court
erroneously denied him presentence custody credit for time served. The People properly
concede.
                                                  BACKGROUND
         Given the nature of defendant’s claim on appeal, a detailed recitation of the
underlying facts and procedural history is unnecessary. Suffice it to say that in the course

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of a drug deal, defendant shot and killed Shawn West. Defendant was arrested on
January 29, 2010, a few days after the shooting.
       An information charged defendant with murder, attempted second degree robbery
of Shawn West, possession of a sawed off shotgun, and robbery of Jonathan McNeal.
The information also alleged as a special circumstance that the murder was committed in
the attempted commission of a robbery. It also alleged as enhancements as to the murder
and attempted robbery charges that defendant was armed with a firearm, personally and
intentionally discharged a firearm causing death, and as to the robbery of McNeal that
defendant personally used a firearm.
       The jury found defendant guilty of second degree murder and unlawfully
possessing a weapon, and found true the allegation he had personally and intentionally
discharged a firearm causing death. The jury found defendant not guilty of attempted
robbery or robbery. On September 28, 2012, the trial court sentenced defendant to an
aggregate term of 43 years to life. The trial court noted defendant had served 974 days in
custody but found he was “entitled to no custody credits given the nature of the crime.”
                                       DISCUSSION
       Defendant contends and the People concede that he was entitled to credit for the
time served in custody between his arrest and sentencing. Convicted murderers are not
entitled to presentence conduct credits. (§ 2933.2, subd. (a); People v. Herrera (2001)
88 Cal.App.4th 1353, 1366-1367.) A defendant convicted of murder is, however, entitled
to credits for time spent in actual custody prior to sentencing. (Herrera, supra,
88 Cal.App.4th at p. 1366.) When, as here, the facts are undisputed, a defendant’s
entitlement to custody credits presents a question of law for the appellate court’s
independent review, since the trial court has no discretion in awarding custody credits.
(People v. Shabazz (1985) 175 Cal.App.3d 468, 473.) The trial court’s failure to award
the proper amount of credits is an unauthorized sentence which may be corrected at any



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time. (In re Reeves (2005) 35 Cal.4th 765, 774.) We will order the judgment modified to
reflect an award of 974 days’ actual presentence custody credits.
                                     DISPOSITION
       The judgment is modified to award defendant 974 days’ presentence custody
credit. The trial court is directed to prepare an amended abstract of judgment reflecting
this modification and forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.



                                                       ROBIE                 , Acting P. J.



We concur:



      BUTZ                  , J.



      HOCH                  , J.




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