P. v. Stork

Filed 3/23/06 P. v. Stork 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sacramento)

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Defendant Howard Guy Stork entered a negotiated plea of no contest to first degree burglary (Pen. Code, § 459‑‑count five)^[1] and grand theft (§ 487, subd. (c)‑‑count four) and admitted a strike prior (§§ 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining counts, with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 for purposes of restitution, and a stipulated state prison sentence of 13 years four months.

The trial court sentenced defendant accordingly, that is, the upper term of six years on count five, doubled to 12 years, and a consecutive one-third the midterm, doubled, or one year four months, for count four. The court awarded 308 actual days plus 154 conduct days for a total of 462 days of presentence custody credit.

Defendant appeals. His request for a certificate of probable cause (§ 1237.5) was denied.

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.

We note an error in calculation of presentence custody credits. Defendant was in custody beginning on November 4, 2004, and was sentenced on September 8, 2005. The court stated that the actual number of days totals 308 days when in fact it totals 309 days. We will modify the judgment accordingly. (§ 2900.5, subds. (a), (d).) In the interest of judicial economy, we correct this error without first requesting supplemental briefing. Any party wishing to address this issue may petition for rehearing. (Gov. Code, § 68081.)

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 add one actual day, from 308 to 309 actual days, for a total of 463 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

BUTZ , J.

We concur:

MORRISON , Acting P. J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.