P. v. Gergely
Filed 3/24/09 P. v. Gergely 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Nevada)
----
THE PEOPLE, Plaintiff and Respondent, v. ZOLTAN MICHAEL GERGELY, Defendant and Appellant. | C058146 (Super. Ct. No. SF04595) |
Linda B. and Robert F. were preparing dinner when defendant Zoltan Michael Gergely and another man knocked on their apartment door. Upon opening the door, they saw defendant holding a samurai sword and an axe. Defendant swung the axe and sword at Robert, who deflected the blows, pushed the other man off the steps, and went back into the apartment. To block Robert from going back outside, Linda stood with her back against the door. Defendant thrust the sword through the door twice, stabbing Linda. Robert went out the door, saw defendant, picked up a nearby hatchet, and threw it at defendant. Defendant then fled.
Defendant pled no contest to two counts of assault with a deadly weapon by means likely to produce great bodily injury (case No. SF04595) and admitted one of the counts was a serious felony. He was placed on five years probation with conditions including that he serve 300 days in county jail and not use or possess controlled substances without a valid prescription.
Over the course of the next two years, defendant repeatedly violated conditions of his probation and was repeatedly reinstated on probation and ordered to serve additional time in jail.
Two years into his probation, a petition to violate probation was filed, alleging among other things that defendant had used methamphetamine and failed to report to probation. Admitting that he violated probation by failing to report to probation as ordered, defendant stipulated to a six-year term in exchange for the dismissal of another criminal complaint (case No. SF06013, apparently alleging a separate crime of assault).
The trial court sentenced defendant to an aggregate term of six years in prison by imposing the middle term of three years on one count of assault with a deadly weapon by means likely to produce great bodily injury, a consecutive term of three years for the infliction of great bodily injury, and a concurrent term of three years for the other assault conviction. Defendant was awarded presentence custody and conduct credits. Case No. SF06013 was dismissed.
On February 13, 2008, defendant filed a notice of appeal. Thereafter, he made an ex parte motion to correct presentence credits. Specifically, he alleged the trial court had issued an unauthorized sentence by imposing a consecutive three-year term for a great bodily injury enhancement when he had not admitted that enhancement. A true finding on the enhancement resulted in the credits being limited to 15 percent. The court deemed the ex parte motion to be a petition for writ of habeas corpus, and an order to show cause issued.
On June 11, 2008, the trial court granted the petition and vacated the judgment. The matter was referred to the probation department for a supplemental report and for the correction of custody credits.
At the resentencing hearing, the court allowed defendant to withdraw his plea and the parties to come to an alternate plea agreement. The court noted that defendant had been misadvised as to the facts of the charges he admitted, which did not include the great bodily injury enhancement, and that this misadvisement dramatically affected the assessment of his prison exposure. The court found this misadvisement change[d] . . . everyones tactical and strategic analysis of where we were at the time.
The parties then entered into essentially the same agreement which had been previously made, except that the prison term would be three years instead of six years. Accordingly, the bulk of defendants custody credits were applied to case No. SF06013. Consistent with the agreement, defendant entered the pleas, the trial court terminated probation, and defendant was sentenced to a prison term of three years in case No. SF04595, with 549 days of actual credit. The parties stipulated to the sentence and the credits, and defendant was permitted to withdraw his earlier waiver as to his first 300 days in custody and to receive credit for those days as well.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are 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 have 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.
The judgment is affirmed.
SCOTLAND , P. J.
We concur:
SIMS , J.
NICHOLSON , J.
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