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The People v. John Kapule Ii

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


January 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN KAPULE II, DEFENDANT AND APPELLANT.

(Super. Ct. No. SF109318A)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Kapule

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant John Kapule, II pleaded guilty to attempted second degree murder (Pen. Code, §§ 664, subd. (a), 187)*fn1 and admitted that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant also pleaded guilty to actively participating in a criminal street gang. (§ 186.22, subd. (a).) In exchange for his plea, the remaining charges and enhancements were dismissed and he agreed that he would be sentenced to a term in state prison of between 17 and 22 years.

According to the factual basis stated by the People at the time of defendant's plea, defendant, who was an active member of a criminal street gang, pulled a handgun from his waistband and shot at a number of people in a gang-related incident, striking an innocent bystander in the face as she drove by.

The trial court sentenced defendant to state prison for a term of 20 years, consisting of a middle term of seven years for attempted murder, 10 years consecutive for the criminal street gang enhancement, and three years consecutive for infliction of great bodily injury. The court imposed a concurrent term of 16 months for the conviction of participating in a criminal street gang.

Defendant appealed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We have undertaken an independent examination of the entire record and note defendant was awarded 555 days of actual custody credits at sentencing but that he had served 560 days in custody between the date he was booked (Aug. 23, 2008) and the date of his sentencing (Mar. 5, 2010).*fn2 Thus, defendant is entitled to an additional five days of actual custody credits. His conduct credits, which were limited to 15 percent and were assessed at 84 days, are not affected by the correction of this error. (§ 2933.1, subd. (a).)

We have found no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to award defendant 560 days of actual credits and 84 days of conduct credits for a total of 644 days of presentence credits. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: BUTZ , J. MAURO, J.


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