P. v. Sisco

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Sisco 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Yuba)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   MICHAEL KEVIN SISCO,                           Defendant and Appellant.

C073975   (Super. Ct. No. CRF12475)

 

            Between May
and August 2012, unknown suspects removed copper wire from a commercial
business and threw it over a fence.  From
a hiding place, defendant Michael Kevin Sisco observed the thefts and retrieved
some wire from outside the fence.  The
business owner discovered the thefts and alerted local recycling firms.  Later that day, a recycler advised the owner
that defendant had brought in cables similar to the ones taken in the
thefts.  When defendant returned to the
recycler, a Yuba County Sheriff’s deputy questioned him about the copper.  He admitted that he had been “peeling from
the ones who were peeling from the wrecking yard.” 

            Defendant
pled no contest to receiving stolen
property.  Imposition of sentence was
suspended and defendant was placed on probation on the conditions, among
others, that he obey all laws and report to the probation department.  He was ordered to make restitution to the
victim in the amount of $180 and pay a $240 restitution fine, a $240
restitution fine suspended unless probation is revoked, a $370 presentence
report fee, a $40 court operations fee, a $30 court facilities assessment, and
booking and citation fees. 

            Defendant
failed to report to the probation department on the day of sentencing or
thereafter.  In March 2013, defendant was
arrested at a major retailer on a charge of petty theft.

            Petitions
were filed alleging that defendant violated his probation by failing to report
to the probation officer and failing to obey all laws.  Defendant admitted the failure to
report.  After he pled no contest to a
new offense of petty theft, the trial court found true his failure to comply
with the probation condition to “obey all laws.” 

            Defendant was
sentenced to a term of 16 months, awarded 52 days of custody credit and 52 days
of conduct credit, and ordered to pay a $280 restitution fine.

            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 href="http://www.fearnotlaw.com/">opening brief.  More than 30 days elapsed, and we received no
communication from defendant.

            Our review
of the record discloses four minor errors:

            First,
defendant was in presentence custody from August 16, 2012, through August 29, 2012, a period of 14 days; and
from March 13, 2013,
through April 22, 2013,
a period of 41 days.  Thus, defendant is
entitled to 55 days of custody credit and 55 days of conduct credit.

            Second, the
trial court failed to dissolve the stay on the probation revocation restitution
fine.

            Third, the
$240 restitution fine survived the revocation of defendant’s probation and
precluded imposition of the $280 restitution fine.  (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)  We modify the judgment to correct these
errors.

            Fourth, two
errors appear on the face of the abstract of judgment.  The $180 award of victim restitution has been
omitted.  The $40 court operations
assessment is erroneously stated as $280. 


            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 55 days of custody credit and 55 days of
conduct credit.  The stay on the
probation revocation restitution fine is dissolved.  The $280 restitution fine is stricken.  As so modified, the judgment is
affirmed.  The trial court is directed to
prepare an amended abstract of judgment, corrected as stated above to include
the $180 award of victim restitution and a $40 court operations assessment, and
delete the $280 restitution fine, and to forward a certified copy of the
amended abstract to the Department of
Corrections and Rehabilitation.

 

 

 

                                                                                              ROBIE                          ,
Acting P. J.

 

We concur:

 

 

 

          BUTZ                            ,
J.

 

 

 

          HOCH                          ,
J.