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The People v. Edgar Modesto Lopez

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


May 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EDGAR MODESTO LOPEZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. 094339)

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

P. v. Lopez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On September 16, 2009, defendant Edgar Modesto Lopez and the victim, the mother of his child, argued. Defendant put his hand around the victim's throat, held her down, and hit her four or five times with his fist. The victim tried to get away and scratched defendant. Defendant ripped the phone cord out of the wall when the victim's cousin started to call the police. The victim sustained injuries to her lip, ear, eyes, neck, and head.

Defendant pled no contest to inflicting corporal injury upon the mother of his child, false imprisonment with force and violence, and removing or injuring a telephone line. Defendant admitted a prior prison term allegation. Defendant also admitted a strike prior (in 1999, defendant was convicted of assault with personal infliction of great bodily injury). Defendant entered his plea and admissions in exchange for an aggregate term of four years and the understanding that the prior prison term enhancement would be "dropped" or "set aside" provided "all conditions [we]re met until the date of sentencing."*fn1 The record suggests that the conditions were that he appear at scheduled court dates and not violate a protective order.

The court sentenced defendant to state prison for an aggregate term of four years, that is, the low term of two years, doubled for the strike prior for infliction of corporal injury, and concurrent terms for the remaining counts. Although, the court initially "stayed" sentencing on the prior prison term enhancement, the court subsequently modified the judgment, striking the enhancement.

Defendant appeals. The trial court denied defendant's request for a certificate of probable cause.

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 elapsed, and we received no communication from defendant.

We have found a sentencing error. The trial court awarded 21 actual days and 20 conduct days for a total of 41 days of presentence custody credit. The trial court awarded too many conduct credits. The recent amendments to Penal Code sections 4019 and 2933 do not operate to entitle defendant to additional presentence custody credits as he has a prior violent felony conviction (assault with personal infliction of great bodily injury). Defendant is entitled to 10 conduct days for a total of 31 days of presentence custody credit.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.*fn2

DISPOSITION

The judgment is modified, reducing conduct credits to 10 days for a total of 31 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

We concur: BUTZ, J. DUARTE, J.


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