IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 2, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RONALD CARTER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F03813)
The opinion of the court was delivered by: Butz , J.
P. v. Carter
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ronald Carter pleaded no contest to assault with force likely to produce great bodily injury upon a common carrier driver. (Pen. Code, § 245.2.)*fn1 Imposition of sentence was suspended and defendant was placed on probation on conditions including service of 120 days in county jail. Defendant completed his term of incarceration. His subsequent petitions to dismiss the case or reduce the felony to a misdemeanor were denied. Defendant obtained a certificate of probable cause. (§ 1237.5.)
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
On the afternoon of May 10, 2008, defendant approached a Regional Transit bus driver and asked him for directions.*fn2 The driver, who was outside of his bus, told defendant that he was taking his break and would speak with defendant later. Defendant got upset, called the driver a derogatory name, and knocked a sandwich from the driver's hand. Defendant walked away and soon returned. Defendant pulled out a pruning tool, made a jabbing motion toward the driver, and said that he was going to cut the driver. The driver entered his bus and closed the door. Defendant was taken into custody without incident.
Defendant pleaded no contest to assault with force likely to produce great bodily injury upon a common carrier. An allegation that he had used a knife was dismissed.
Imposition of sentence was suspended and in July 2008 defendant was placed on probation for five years on conditions including service of 120 days of incarceration with 76 days of custody credit and no conduct credit. Defendant subsequently completed his term of incarceration.
In December 2010, defendant filed a petition to dismiss the case pursuant to section 1203.4 or, alternatively, to reduce the offense from a felony to a misdemeanor pursuant to section 17, former subdivision (b). The petition was denied.
In May 2011, defendant filed a second petition to dismiss the case pursuant to section 1203.4 or, alternatively, to reduce the offense from a felony to a misdemeanor pursuant to section 17, former subdivision (b). The petition was denied on June 27, 2011, because defendant's offense is a straight felony, not reducible under section 17; and defendant had not fulfilled the conditions of probation for the entire period of probation under section 1203.4, former subdivision (a), in that he had an intervening misdemeanor.
Defendant appealed and obtained 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. (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 have elapsed, and we have received no communication from defendant.
Our review discloses that defendant is entitled to 38 days of conduct credit under former section 4019. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554 [version in effect in July 2008 and same formula as effective with Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010].) The amendment to section 2933, effective September 28, 2010 (Stats. 2010, ch. 426, § 1), does not entitle defendant to additional conduct credit because he has not been committed to state prison.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to award defendant 38 days of conduct credit. The trial court shall prepare an amended order of probation and forward a copy to the probation department. As so modified, the judgment is affirmed.
We concur: HULL , Acting P. J. MAURO , J.