Filed 9/6/18 P. v. Phan CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
TIN QUOC PHAN,
Defendant and Appellant.
|
G055778
(Super. Ct. No. 16CF1994)
O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Vickie L. Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
THE COURT:*
In February 2017, defendant Tin Quoc Phan pleaded guilty to identify theft with a prior identify theft conviction (Pen. Code, § 530.5, subd. (c)(2))[1] and acquiring access to credit card account information (§ 484e, subd. (d)). Defendant also admitted two prison prior allegations. (§ 667.5, subd. (b).) Consistent with the stipulated sentence in the parties’ plea agreement, defendant was sentenced to five years in county jail, with execution of sentence suspended pending the successful completion of five years of formal probation.
In September 2017, the Orange County Probation Department alleged that defendant violated his probation terms. The trial court found defendant to be in violation of the terms of his probation. The court terminated probation and sentenced defendant to five years and eight months in county jail, which the court stated was “the sentence that was previously imposed.”
Defendant raises two issues in this appeal, both of which are conceded by the Attorney General.
Defendant first contends, and the Attorney General concedes, that five years and eight months in county jail is an unauthorized sentence. The revocation of probation should have resulted in the five year sentence originally imposed by the court being put into effect. (§ 1203.2, subd. (c); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1424.) It appears this sentencing error resulted from a discrepancy in the minute order memorializing the pronouncement of judgment (unlike the reporter’s transcript, which states the sentence was five years, the subsequent minute order indicates the sentence was five years and eight months). We agree with the parties that the sentence must be modified to reflect the proper five year sentence because the circumstances of this case indicate that that reporter’s transcript reflects the correct sentence. (See People v. Harrison (2005) 35 Cal.4th 208, 226.)
Second, defendant asserts, and the Attorney General once again agrees, that defendant is entitled to 10 additional credits, based on 262 actual days of custody and 262 conduct credits. (See §§ 2900.5, 4019, subd. (f).) The court awarded defendant 514 total credits (257 days in actual custody, plus 257 days of conduct credit). We agree the judgment must be modified, as the record and briefing indicate that five days of actual custody in between the date of arrest and the date of sentencing were missed in the trial court calculation.
DISPOSITION
The order is modified to state that defendant is sentenced to five years in county jail, not five years and eight months. The order is also modified to award 524 days of presentence custody credit (262 days in actual custody and 262 days for conduct). The judgment is affirmed as modified. The trial court is directed to prepare an amended sentencing order and to forward a certified copy to the Orange County Sheriff.
