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The People v. Primitivo De Letran Daan

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


August 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PRIMITIVO DE LETRAN DAAN, JR., DEFENDANT AND APPELLANT.

(Super. Ct. No. SF113374A)

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

P. v. Daan

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Primitivo De Letran Daan, Jr., 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

On November 10, 2009, Stockton police officers saw defendant making a hand-to-hand transaction with another person. Defendant was searched and found to possess 13.8 grams of rock cocaine.

Defendant pleaded guilty to possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and admitted two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)). The trial court imposed a stipulated nine-year term and ordered various fines and fees including a $200 restitution fine (Pen. Code, § 1202.4)*fn1 subject to an additional $20 administrative fee. The trial court awarded defendant 12 days of presentence credit, consisting of eight actual days and four conduct days. Defendant did not obtain a certificate of probable cause.

II

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. He asserts the $20 administrative fee imposed by the trial court is unauthorized, but he is incorrect. Penal Code section 1202.4, subdivision (l) states in pertinent part that "any county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court[.]"

Defendant also contends the trial court failed to apply section 1202.4, subdivision (c) when imposing the restitution fine. Subdivision (c) requires the court to impose a restitution fine "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." But the record does not include any evidence of compelling or extraordinary reasons for not imposing the restitution fine, and the trial court did not abuse its discretion in imposing the fine.

In addition, defendant claims the police report said he was searched with no results, and defense counsel was never given a toxicologist report. However, defendant's guilty plea waives his right to challenge the sufficiency of the evidence supporting his conviction. (People v. LaJocies (1981) 119 Cal.App.3d 947, 956-957.) And to the extent this claim attacks the validity of his plea, his failure to obtain a certificate of probable cause forfeits the issue for appellate review. (Ibid.)

Nonetheless, we conclude that defendant is entitled to four additional days of presentence conduct credit pursuant to the recent amendment to section 2933, which authorizes one day of presentence conduct credit for each day of actual presentence confinement served. (§ 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 four additional days of presentence conduct credit, so that his total aggregate presentence credit will be 16 days. 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: BLEASE , Acting P.J. HULL ,J.


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