P. v. Earp
Filed 10/2/06 P. v. Earp 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
(Butte)
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| THE PEOPLE, Plaintiff and Respondent, v. EUGENE RAY EARP, Defendant and Appellant. |
C049425
(Super. Ct. No. 090437 & SCM004043)
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on September 7, 2006, be modified as follows:
The text of footnote 5 at pages 7 and 8 should be deleted and the following text substituted in its place:
The waiver colloquy twice referred to “local time,” and to time spent “in the Butte County jail,” but it did not mention the diagnostic studies at the Department of Corrections. We have previously explained that a defendant is still “confined” in the county jail when he is sent to a correctional facility for a diagnostic study. (People v. Engquist (1990) 218 Cal.App.3d 228, 232.) Defendant does not contend the omission of an Engquist advisement (that his waiver of “local time” includes a waiver of the time he spent at the Department of Corrections during the diagnostic study) precludes a finding that his Johnson waiver was knowing and intelligent as to the credits he accrued during the diagnostic studies. Any such contention is forfeited. (See People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Wharton (1991) 53 Cal.3d 522, 563.)
BY THE COURT:
___DAVIS__________________, Acting P.J.
___HULL___________________, J.
___CANTIL-SAKAUYE_________, J.
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