Opinion
B296817
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MATHEW COYNE, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA440473) APPEAL from an order of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Affirmed as modified. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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Mathew Coyne was convicted of first degree murder and burglary after brutally stabbing 71-year-old Alma Cornish and burglarizing her home. He was sentenced to life without parole. He does not challenge his convictions or life sentence. Instead, he asserts three sentencing errors: (1) the trial court improperly failed to award custody credits; (2) the court erroneously imposed a parole revocation fine; and (3) the abstract of judgment inaccurately attached an elder abuse enhancement to the murder count instead of the burglary count. Respondent agrees these errors occurred, as do we. We will correct Coyne's sentence and affirm.
BACKGROUND
We need not recount the full details of this heinous crime. Ms. Cornish's body was found in a bathtub in her home, having been stabbed 18 times. Her home was ransacked, items were stolen, and two of her cars were missing. Coyne, who had helped Ms. Cornish with chores around the house, was later arrested while driving one of her cars. He confessed to the murder and burglary, saying he did it out of "greed."
The jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a); count 1) and first degree burglary (§ 459; count 2). For count 1, the jury found true the special circumstance that the murder was committed during a burglary. (§ 190.2, subd. (a)(17).) For count 2, it found an elder abuse enhancement true. (§ 667.9, subd. (a).) For both counts, it found weapon use enhancements true. (§ 12022, subd. (b)(1).) The court sentenced Coyne to life without parole plus one year for the murder count; it stayed his sentence on the burglary count.
Undesignated statutory citations refer to the Penal Code.
DISCUSSION
I. Coyne Is Entitled to Custody Credits
In pronouncing Coyne's sentence, the trial court declined to grant any custody credits because "[t]his is a murder case." The court erred. A murder conviction disqualifies a defendant from receiving conduct credits, not custody credits. (§ 2933.2, subd. (a); People v. Chism (2014) 58 Cal.4th 1266, 1336.) Coyne is entitled to one day of credit for each day he spent in custody between his arrest and sentencing. (§ 2900.5, subd. (a); People v. Sencion (2012) 211 Cal.App.4th 480, 482; People v. Johnson (2010) 183 Cal.App.4th 253, 288-289; People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.) He was arrested on October 6, 2015 and sentenced on March 20, 2019. He is entitled to 1,262 days of custody credit, and the judgment must be corrected to award them.
II. The Parole Revocation Fine Must Be Stricken
The court imposed and suspended a $300 parole revocation fine pursuant to section 1202.45. When a defendant's overall sentence does not include a period of parole, a parole revocation fine is improper. (People v. McWhorter (2009) 47 Cal.4th 318, 380 (McWhorter); People v. Jenkins (2006) 140 Cal.App.4th 805, 820; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185-1186.)
Coyne was sentenced to life without parole on the murder count, as well as a determinate term for the burglary count, which was stayed pursuant to section 654. In People v. Brasure (2008) 42 Cal.4th 1037, our high court held a parole revocation fine was proper for a defendant who was sentenced to death as well as a determinate term. (Id. at p. 1075.) Soon after, in McWhorter, the court struck a parole revocation fine for a defendant sentenced to death as well as a determinate term. (McWhorter, supra, 47 Cal.4th at p. 380.) The court did not cite or discuss Brasure in McWhorter. The only difference between the two cases appears to be the determinate term in Brasure was not stayed pursuant to section 654, whereas the determinate term in McWhorter was. Because the determinate term for Coyne's sentence was stayed, we will follow McWhorter and "order the fine stricken and the judgment modified to so reflect." (McWhorter, supra, at p. 380.)
III. The Elder Abuse Enhancement Must Be Corrected In the Abstract of Judgment
The jury found true an allegation the victim of the burglary in count 2 was 65 years old or older, triggering a one-year enhancement pursuant to section 667.9, subdivision (a). Based on this finding, the court added one year to Coyne's stayed determinate term for the burglary in count 2.
Two abstracts of judgment were issued—one for the indeterminate term for the murder in count 1; and one for the determinate term for the burglary in count 2. The abstract for the indeterminate term incorrectly contains the one-year elder abuse enhancement while the abstract of judgment for the determinate term does not contain this enhancement. They must be corrected reflect the enhancement was imposed as part of the determinate term for count 2.
DISPOSITION
The judgment is corrected to award Coyne 1,262 days of custody credits and to strike the $300 parole revocation fine. The indeterminate abstract of judgment is corrected to delete the reference to the elder abuse enhancement pursuant to section 667.9, subdivision (a), and the determinate abstract of judgment is corrected to show this enhancement was imposed and stayed as part of the determinate term. The trial court shall issue amended abstracts of judgment and forward them to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
BIGELOW, P. J. WE CONCUR:
STRATTON, J.
WILEY, J.