P. v. Olvera
Filed 4/17/07 P. v. Olvera CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. CAIN MORA OLVERA, Defendant and Appellant. | F050615 (Super. Ct. No. 1044705) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson III, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer , Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
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Appellant, Cain Mora Olvera, lived with the two victims, 11-year-old B. and 9-year-old J., and their mother from 2000 until June 2002. During that time, Olvera committed numerous sexual acts against the victims including inappropriately touching them, raping one victim, making the victims touch his penis, and making them masturbate him. The molestations came to light when the victims mother interviewed them after finding Olvera in the victims bedroom the previous night naked with a partial erection. Additionally, the older victim contracted Herpes Simplex II from Olvera.
Subsequently, the district attorney filed a second amended information charging Olvera with one count each of aggravated sexual assault (count 1/Pen. Code, 269, subd. (a))[1]and lewd and lascivious conduct with a child under the age of 14 (count 2/ 288, subd. (a)) with special allegations of great bodily injury and multiple victims ( 12022.8, 667.61).
On April 28 2004, a jury convicted Olvera on all counts and found true all the special allegations.
On June 24, 2004, the court sentenced appellant to an aggregate indeterminate term of 35 years to life as follows: 15 years to life on count 1, a 5-year great bodily injury enhancement and a consecutive 15 years to life on count 2.
Following a timely appeal, this court remanded the matter to the trial court for resentencing after finding that the court erred in sentencing Olvera in count 2 pursuant to the one strike law ( 667.61).
On May 24, 2006, the court sentenced Olvera to an indeterminate term of 26 years to life consisting of an indeterminate term of 15 years to life on his aggravated sexual assault conviction, a five year great bodily injury enhancement, and a consecutive midterm of six years on his lewd and lascivious conduct conviction. On June 16, 2006, Olvera filed a timely appeal.
Olveras appellate counsel has filed a brief, which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Olvera has not responded to this courts invitation to submit additional briefing.
However, our review of the record disclosed that the court erred in calculating Olveras entitlement to presentence conduct credit. At Olveras resentencing hearing on May 24, 2006, the court awarded Olvera 177 days of presentence conduct credit pursuant to Penal Code section 2399.1[2]apparently based on the 1180 days he spent in custody from the date of his initial arrest until he was resentenced in this matter (1180 days x 15% = 177 days). However, in People v Buckhalter (2001) 26 Cal.4th 20, the Supreme Court held that once a defendant is committed to prison, his custody is thereafter considered service of his sentence, and a remand with respect to a sentence the defendant is already serving does not render him eligible for credits of the presentence kind. (Id. at p. 33.) The court also held that on remand for resentencing the court is required to calculate all of the actual days a defendant spends in post sentence custody and include this amount in the abstract of judgment. (Id. at p. 40-41.)
According to Olveras probation report, Olvera was arrested on June 5, 2002, and released on September 11, 2002 (99 days in custody). He was subsequently arrested on June 9, 2003, and remained in custody until his sentencing on May 24, 2004 (382 days in custody). Thus, it appears Olvera was in presentence custody for 481 days (382 Days + 99 days = 481 days). Further, pursuant to Penal Code section 2933.1 he was entitled to a reduction of his sentence of only 15%. Thus Olvera was entitled to only 72 days of presentence conduct credit (481 days x 15 % = 72.15 days) instead of the 177 days the court awarded him. In view of this, we will reduce Olveras presentence conduct credit from 177 days to 72 days and reduce his total credits from 1,367 to 1,252 days (1180 days + 72 days = 1,252 days).
Further, following independent review of the record we find that no other reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is modified to reduce Olveras presentence conduct credit from 177 days to 72 days and his total credits from 1,367 days to 1,252 days as calculated above. The trial court is directed to prepare an amended abstract of judgment that incorporates these modifications and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
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*Before Levy, Acting P.J., Cornell, J., and Kane, J.
[1]All further statutory references are to the Penal Code.
[2] Section 2933.1, in pertinent part, provides:
(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [] . . . []
(c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).
