IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
December 4, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FRANK RENE ROSILES, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF11-598)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Rosiles
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On December 9, 2011, pursuant to a plea bargain, defendant Frank Rene Rosiles, pled no contest to kidnapping (count 1; Pen. Code, § 207, subd. (a)),*fn1 robbery (count 2; § 211), first degree burglary (count 3; §§ 459, 460), second degree burglary (count 4; §§ 459, 460), and kidnapping to commit robbery (count 5; § 209, subd. (b)(1)). He also admitted the service of two prior prison terms (§ 667.5, subd. (b)).
As part of the bargain, per People v. Cruz (1989) 209 Cal.App.3d 560 (Cruz), defendant was released from custody pending sentencing conditioned upon, inter alia, his appearing for sentencing as scheduled and obeying all laws. If he complied, then counts 1, 4, and 5 would be dismissed and he would be sentenced to prison for nine years four months. If he did not comply, he faced a maximum term of 20 years to life.
On March 16, 2012, defendant admitted violating the Cruz condition that he obey all laws. In exchange for his admission, defendant was to receive dismissal of the simple kidnapping charge (count 1) and a new case filed against him, which was the basis for the Cruz violation.*fn2 He then would be sentenced to a total term of 11 years 8 months to life, the sentence consisting of six years for the first degree robbery (count 2), stayed pursuant to section 654; the low term of two years for the first degree burglary (count 3), a consecutive term of eight months for the second degree burglary (count 4), and two years for the prior prison term enhancements, for a total determinate term of four years eight months. The determinate term was to be followed by a consecutive term of seven years to life for the aggravated kidnapping (count 5), bringing the total term to 11 years 8 months to life.
On April 23, 2012, the court imposed sentence in accordance with the March 16 agreement. The court credited defendant with 281 days of presentence custody credit (141 days actual, 140 days conduct). The court also imposed various fines and fees as detailed in the abstract of judgment.
FACTUAL BASIS FOR THE PLEA*fn3
On October 27, 2011, defendant and Jessica Lopez drove to Crystal Hardaway's residence, a trailer, to retrieve some property Lopez had left there. After getting Lopez's property, defendant and Lopez left the trailer. Shortly thereafter, Hardaway received a telephone call asking for Lopez and went outside to see if Lopez was still there. Hardaway saw defendant coming out of her garage carrying several items of her property. Hardaway told defendant to put them back, which he did.
That night, Hardaway returned to her residence about 10:15 p.m. and saw defendant's car in her driveway. Hardaway got out of the vehicle and defendant grabbed her from behind; took her phone, flashlight, and purse; and forced her inside her residence. Defendant tied up Hardaway and took her jewelry, watches, and laptop computer. After defendant left, Hardaway freed herself and called 911.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 of the record discloses an error in custody credit calculation.
Error in Custody Credit
At the commencement of the April 23, 2012, sentencing hearing, the court stated: "I've reviewed the memorandum submitted by Defense counsel [regarding custody credits]. I've also reviewed a couple of treatises. I believe all parties are then in agreement that the Defendant is entitled to custody credit on his determinate sentence." Both defendant's counsel and the prosecutor agreed with the court's assessment.
The court continued, "Okay. And then looking at the sentencing here, the custody credits are going to be -- since the crime is committed after October 1st, 2011 [referring to the Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53; and Stats. 2011, 1st Ex. Sess., ch. 12, § 35; hereafter Realignment Act)], he would be receiving essentially 4019 credits, two for two, after he gets to four days, which he would be receiving essentially 100 percent credits in this matter." After imposing sentence and fines and fees, the court stated, "And, again, we've already done the custody credits," however the court had made no calculation.
Even though the court did not state the numerical amount of present custody credits it was awarding, the court's minutes and the abstract of judgment for the determinate sentencing show defendant was credited with 141 days for actual custody plus 140 days for conduct.
First, it matters not that defendant's crimes were committed after October 1, 2011, because the crime of kidnapping for the purpose of robbery (count 5), is a violent felony (see § 667.5, subds. (c)(7) ["Any felony punishable by death or imprisonment in the state prison for life"] & (c)(14) ["Kidnapping"]). A violent felony precludes defendant's being sentenced under the Realignment Act (see § 1170, subd. (h)(3)).
Because defendant is being sent to state prison for a violent felony, his conduct credits are limited to 15 percent by section 2933.1.*fn4
Consequently, defendant is entitled to 21 days of conduct credit (141 actual multiplied by 0.15).
The matter is remanded to the Yuba County Superior Court with directions to amend its records to reflect that defendant's presentence custody credit is 21 days. The court is to prepare an amended abstract of judgment reflecting this change and forward a copy to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
ROBIE , J.
DUARTE , J.