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The People v. David Eugene Looney

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


February 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID EUGENE LOONEY, DEFENDANT AND APPELLANT.

(Super. Ct. No. 08F04203)

The opinion of the court was delivered by: Murray ,j.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

About 1:45 a.m. on May 24, 2008, Sacramento Police Officer Brian McGlinchey saw defendant David Eugene Looney backing a car out of the parking lot of a clothing store at a high rate of speed. Clothing was sticking out of the car door. The glass front door was shattered and the alarm was sounding. With lights and siren activated on the patrol car, McGlinchey followed defendant, who drove to his house about a quarter of a mile away. Inside the car, McGlinchey and another officer found nine First Communion dresses, 20 boys' tuxedos, a crowbar and gloves. Defendant, as well as the owner of the house, consented to a search of defendant's room, where the officers found ammunition and hundreds of used syringes.

Defendant entered a guilty plea to second degree burglary (Pen. Code, § 459) and admitted a strike prior (1993 robbery) in exchange for a stipulated state prison sentence of six years, that is, the upper term of three years doubled for the strike prior. The court sentenced defendant accordingly.

Defendant appeals. The trial court denied defendant's request for a certificate of probable cause. (Pen. Code, § 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) 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 have elapsed, and we have received no communication from defendant.

The trial court awarded 731 actual days and 364 conduct days for a total of 1,095 days of presentence custody credit but the abstract of judgment does not so reflect.*fn1 Defense appellate counsel wrote to the trial court, notifying it that the abstract failed to reflect the presentence custody credit awarded and requesting that the trial court correct the abstract and forward a copy to this court. This court has not received a corrected abstract. In addition, the box in section 4 of the abstract, which should reflect that defendant was sentenced as a two-strike offender, was not checked. We will order the abstract corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment to reflect that defendant was awarded 731 actual days and 364 conduct days for a total of 1,095 days of presentence custody credit and to check the box in section 4 to reflect that defendant was sentenced as a two-strike offender and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.

We concur:

RAYE , P.J.

BUTZ ,J.


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