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The People v. Johnny Manuel Gonsalvez

May 10, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHNNY MANUEL GONSALVEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F06357)

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

P. v. Gonsalvez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We shall remand the matter for correction of the abstract of judgment and otherwise affirm.

On January 17, 2012, a complaint deemed an information was filed in case No. 11F06357 accusing defendant Johnny Manuel Gonsalvez of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).*fn1

On June 5, 2012, defendant pleaded no contest to the assault charge. The stipulated factual basis for the plea was as follows: On or about September 13, 2011, defendant had a verbal argument with the victim, Tamara S. After she slapped him, he struck her with a box cutter, causing a laceration approximately three inches long on her back.

The trial court also found that defendant had violated the terms and conditions of probation in two trailing cases, case Nos. 09F02295 and 10F07079, in that he failed to obey all laws.

The trial court referred the matter to the Department of Corrections and Rehabilitation for a diagnostic study and evaluation (§ 1203.03).

On August 31, 2012, having reviewed the diagnostic evaluation, the trial court denied probation and sentenced defendant to a three-year term in state prison in case No. 11F06357. The court also terminated the grants of probation in case Nos. 09F02295 and 10F07079. As to case No. 10F07079, in which defendant was charged with possession of narcotics and specified non-narcotics (Health & Saf. Code, § 11377, subd. (a)), the court deleted defendant from the Proposition 36 program and sentenced him to 16 months in state prison; because he received credit for time served, this sentence did not add to his actual term.

The trial court awarded defendant 530 days of presentence custody credit in case No. 11F06357 (354 days of actual credit and 176 days of conduct credit) and 716 days of presentence custody credit in case No. 10F07079 (358 days of actual credit and 358 days of conduct credit). As to case No. 11F06357, the court imposed a $240 restitution fine (§ 1202.4, subd. (b)) and a $240 suspended parole revocation restitution fine (§ 1202.45), a $40 court operations assessment fee (§ 1465.8, subd. (a)(1)(A)), a $340.01 main jail booking fee and a $62.09 mail jail classification fee (Gov. Code, § 29550.2), and a $30 court facility fee (Gov. Code, § 70373). The court reserved jurisdiction for an award of restitution to the victim in an amount to be determined.

The abstract of judgment also indicates a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 suspended parole revocation restitution fine (§ 1202.45) as to case No. 10F07079, which the trial court did not orally impose.

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, 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 elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

We conclude, however, that the matter must be remanded for correction of the abstract of judgment, because one of the two fines reflected ...


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