P. v. Roark
Filed 5/15/06 P. v. Roark 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
(Nevada)
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THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE ROARK II, Defendant and Appellant. | C050659 (Super. Ct. No. SF04-559) |
Defendant Robert Lee Roark II pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)[1]--count 1) and threatening to commit a crime that will result in death or great bodily injury (§ 422--count 2). In exchange, the prosecution amended count 2 from a felony to a misdemeanor; and dismissed a great bodily injury enhancement (§ 12022.7, subd. (a)) on count 1, a count of possession of paraphernalia (Health & Saf. Code, § 11364--count 3), and an unrelated misdemeanor (case No. M05-063). Defendant was sentenced to state prison for four years and to county jail for six months consecutively. To satisfy the latter term, the court used 120 of the reported 265 days of custody credit and added 60 days of conduct credit (180 days total). Defendant was awarded the balance of 145 days of custody credit and 72 days of conduct credit. He was ordered to pay a $635 fine, including penalty assessments, a $200 restitution fine (§ 1202.4), and a $200 restitution fine suspended unless parole is revoked (§ 1202.45).
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 have elapsed, and we have received no communication from defendant.
Our review of the record discloses an error in the calculation of presentence credit. Defendant was in custody from October 14, 2004, through July 11, 2005, a period of 271 days. Because 120 days were used to satisfy the jail term, he is entitled to 151 days of custody credit and 74 days of conduct credit.
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 151 days of custody credit and 74 days of conduct 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.
DAVIS , J.
We concur:
SCOTLAND , P.J.
BUTZ , J.
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[1] Further undesignated section references are to the Penal Code.