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The People v. Gary Bernard Elliott

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


June 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GARY BERNARD ELLIOTT, SR., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 08F03716, 09F04465)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Gary Bernard Elliott, Sr., asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude defendant is entitled to additional conduct credits, but we find no other arguable errors. We will affirm the judgment as modified.

I While defendant was on probation in case Nos. 08F03716 and 09F04465, he was detained by private security officers outside an out-of-business furniture store and subsequently arrested. He possessed items from the furniture store, two flashlights, gloves, a ski-mask-type hat with eye holes in it, and tools commonly used to break into buildings.

In each case, the trial court (1) found that defendant violated probation, (2) terminated probation, (3) sentenced defendant to a concurrent 16-month prison term, (4) approved presentence credit, and (5) imposed restitution and parole revocation fines.

II Appointed counsel filed an opening brief that sets forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 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 conclude that defendant is entitled to additional presentence conduct credits. At the time of sentencing, the trial court asked the courtroom clerk to recite the credits. The clerk said she had to get defendant's "sentenced" time, then said that in case No. 08F03716 defendant had 21 actual days plus 180 days good-time/work-time, and in case No. 09F04465 defendant had 21 actual days plus 135 days good-time/work-time. The trial court approved those credits and there was no objection by defense counsel. However, the minute order in case No. 08F03716 reflects 21 days actual, 20 days good-time/work time, and 180 days sentenced time, totaling 221 days of credit, and the minute order in case No. 09F04465 reflects 21 days actual, plus 20 days, plus 135 days sentenced time, totaling 176 days of credit. The credits reflected in the abstract of judgment are consistent with the minute orders.

Defendant is entitled to one day of additional conduct credit in each case pursuant to the recent amendment to Penal Code section 2933.*fn1 Penal Code section 2933 authorizes one day of presentence conduct credit for each day of actual presentence confinement served. (Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1.) Defendant served 21 days of actual presentence confinement in each of the two cases. Because he was not convicted of a "serious" or "violent" felony and is not subject to registration as a sex offender, he is entitled to an additional day of conduct credit in each case, totaling 21 days of conduct credit in each case. (Pen. Code, § 2933, subd. (e)(1) & (3), added by Stats. 2010, ch. 426, § 1.)

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

DISPOSITION

The judgment is modified to award defendant an additional day of conduct credit in case No. 08F03716 for total conduct credit of 21 days in that case. The judgment is also modified to award defendant an additional day of conduct credit in case No. 09F04465 for total conduct credit of 21 days in that case. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the abstract to the California Department of Corrections and Rehabilitation.

We concur: HULL , Acting P.J. ROBIE ,J.


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