P. v. Alarcon
Filed 7/28/06 P. v. Alarcon CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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| THE PEOPLE, Plaintiff and Respondent, v. FERNANDO NANOA ALARCON, Defendant and Appellant. | C049483 Super.Ct.No. MF027867A
|
Defendant Fernando Nanoa Alarcon pleaded no contest to attempted second degree murder (Pen. Code, §§ 187, subd. (a), 664; further statutory references are to the Penal Code) and admitted a great bodily injury allegation (§ 12022.7), a prior serious felony allegation (§ 667, subd. (a)), and a strike allegation (§§ 667, subds. (b)-(i), 1170.12). A count of assault with a deadly weapon (§ 245, subd. (a)(1)) was dismissed in light of the plea. Defendant was sentenced to state prison for 15 years, awarded 374 days of custody credit and 56 days of
conduct credit, and ordered to pay a $200 restitution fine (§ 1202.4), a $200 restitution fine suspended unless parole is revoked (§ 1202.45), and a $20 court security fee (§ 1465.8).
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.
Our review of the record reveals an error in the calculation of presentence credits. Defendant was arrested on March 25, 2004, and was sentenced on April 4, 2005. There are 376 days between and including these dates.[1]
We shall modify defendant's custody credit accordingly.[2]
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to award defendant 376 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
MORRISON , J.
We concur:
SIMS , Acting P.J.
BUTZ , J.
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Analysis and review provided by Chula Vista Real Estate Attorney.
[1] At sentencing, defendant was awarded 372 days of custody credit. Appellate counsel filed an ex parte motion in the trial court seeking 374 days of custody credit. Unfortunately, neither credit calculation was correct.
[2] This adjustment does not change defendant's conduct credits. Because defendant was convicted of attempted murder with an enhancement for great bodily injury, conduct credits were limited to 15 percent of actual custody credits. Defendant was originally awarded 56 days of conduct credit. Fifteen percent of 376 is 56.4, or 56. Conduct credits do not change.
