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The People v. Michael anderson

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


July 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL ANDERSON, DEFENDANT AND APPELLANT.

Super. Ct. No. 10F01287

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

P. v. Anderson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Anderson has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

BACKGROUND

On May 11, 2010, a complaint was filed that charged defendant with one count of first degree burglary (Pen. Code,*fn1 § 459) and alleged that a person other than an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). The complaint also alleged that defendant had three prior "strike" convictions (§§ 667, subds. (b)-(i), 1170.12).

On September 30, 2010, defendant pled no contest to felony vandalism (§ 594, subd. (b)(1)), an offense reasonably related to the burglary charge, and admitted one prior strike (a 1993 conviction for first degree burglary). The People agreed to seek dismissal of the remainder of the charges and allegations and stipulate to a state prison term of four years.

The parties stipulated to the following factual basis:

1) On or about February 23, 2010, defendant went to the victim's residence and smashed the bedroom window, causing over $400 in damage; and 2) On December 20, 1993, defendant was convicted of residential burglary in Sacramento County.

After defendant waived preparation of a probation report, the trial court imposed the agreed-upon sentence. The court also imposed a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 restitution fine (§ 1202.45), a restitution amount "to be determined," a $30 court security fee (§ 1465.8), and a $30 court facilities fee (Gov. Code, § 70373). The court awarded defendant 172 days of presentence custody credit (144 actual days plus 28 conduct credit days).

On January 24, 2011, following communication from appellate counsel, the trial court filed an amended abstract of judgment reflecting a corrected presentence custody credit award of 266 days (178 actual days plus 88 conduct credit days).

In doing so, the trial court noted that defendant had served 220 actual days in local custody, but that 42 of those days counted toward service of an earlier sentence, therefore were properly subtracted from the 220 days. The resulting total was 178 actual days rather than the 144 originally credited.

The trial court also found the proper calculation of credit was "two days of conduct credit for every four days of actual custody: 88 days based on 178 actual days." (§ 4019, subd. (b)(2) [January 25, 2010]; People v. Thomas (1999) 21 Cal.4th 1122, 1125-1130; see People v. Bobb (1989) 207 Cal.App.3d 88, 97-98.) This corrected credit application totaled 266 days.

DISCUSSION

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. (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.

Defendant filed a supplemental brief requesting an amended custody credit award of 293 days (220 actual days plus 73 conduct credit days). However, defendant does not point to anything in the record that contradicts the trial court's finding that 42 of the 220 days in actual custody were service of an earlier sentence, therefore were properly subtracted from the 220 days. Further, defendant's attempt to calculate conduct credit results in a calculation less favorable to him, and we decline to adopt this calculation.*fn2

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 judgment is affirmed.

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


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