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The People v. Paul Daryle Zierke

December 18, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PAUL DARYLE ZIERKE, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. P07CRF0382, P11CRF0280)

The opinion of the court was delivered by: Hull , Acting P. J.

P. v. Zierke

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

In case No. P07CRF0382 (case 382), defendant Paul Daryle Zierke inflicted corporal injury on his female cohabitant on September 7, 2007. On September 19, 2007, he entered a plea of no contest to violating Penal Code section 273.5, subdivision (a) and was granted probation for a term of three years subject to certain terms and conditions. (Unspecified section references that follow are to the Penal Code.)

On June 9, 2008, defendant admitted violating probation by committing new offenses and failing to comply with certain terms and conditions. The court reinstated probation, extending the period to June 9, 2011.

On January 25, 2010, defendant admitted violating probation by failing to comply with certain terms. The court reinstated probation, extending the period to January 25, 2012.

On June 16, 2011, defendant vandalized a car window and threatened the victim. On September 19, 2011, defendant entered a plea of no contest to misdemeanor criminal threats and felony vandalism in case No. P11CRF0280 (case 280) and admitted violating probation in case 382 in exchange for an aggregate state prison sentence of four years. The same day, the court sentenced defendant accordingly (in case 382, the upper term of four years for cohabitant abuse, and in case 280, a concurrent low term of 16 months for felony vandalism, and a concurrent 10-day term for misdemeanor criminal threats).

On October 21, 2011, at a hearing held to clarify credits, the court awarded 219 actual days and 219 conduct days for a total of 438 days of presentence custody credit in case 382. The court did not award any credit in case 280.

Defendant filed a notice of appeal and only cited the date of the hearing on custody credits (October 21, 2011).

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. (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 elapsed, and we received no communication from defendant.

In response to defense appellate counsel's letter dated February 24, 2012, the trial court modified the judgment, providing for 231 actual days and 231 conduct days for a total of 462 days of presentence custody credit in case 382. The court awarded 96 actual days and 96 conduct ...


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