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The People v. John Simon Ydiarte

October 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN SIMON YDIARTE, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF07357)

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

P. v. Ydiarte

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appellate counsel for defendant John Simon Ydiarte 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 modify the judgment to subtract unearned conduct credit, as explained post, and otherwise affirm.

BACKGROUND

On September 12, 2007, as part of a plea agreement, defendant pleaded no contest to felony vehicle theft. (Veh. Code, § 10851, subd. (a).) A misdemeanor charge of leaving the scene of an accident was dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The stipulated factual basis showed that on or about May 31, 2007, defendant took a vehicle with the intent to permanently deprive the owner of title and possession, crashed the vehicle, and then fled the scene.

On October 9, 2007, the trial court suspended imposition of sentence and placed defendant on three years of probation. One condition of probation was that defendant serve 68 days in jail, but he was given credit for time served, 46 actual days and 22 "good time/work time" credits.*fn1

On November 29, 2010, after absconding for three years, defendant admitting violating probation by failing to report to his probation officer and failing to report his change of address.*fn2 On December 27, 2010, after denying his motion to reduce the offense to a misdemeanor, the trial court sentenced defendant to the upper term of three years in prison.

In addition to imposing various fines and fees and making a victim restitution order, the trial court awarded defendant 177 days of presentence custody credit, consisting of 89 days actually served plus 88 days of conduct credit. This included the 46 actual days previously credited, two days spent in the Orange County jail (apparently on a Yuba County hold), and 41 additional days served in the Yuba County jail, pending sentencing.

Defendant timely filed this appeal.

DISCUSSION

Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. ...


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