P. v. Warth
Filed 1/9/13 P.
v. Warth CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
THAD WARTH,
Defendant and Appellant.
B240683
(Los Angeles County
Super. Ct. No.
SA076278)
APPEAL
from a judgment of the Superior Court of
County, Antonio Barreto, Jr., Judge. Affirmed as modified.
Marilee
Marshall & Associates, Inc. and Marilee Marshall, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William
Bilderback, II, and Mark E. Weber, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant,
Thad Warth, appeals from a judgment entered after a jury convicted him of
firearm possession after having previously been convicted of a felony. (Former Pen. Code,
now § 29800, subd. (a)(1).) The
information alleged defendant was in possession
of a firearm on December 21, 2010. Count 1 alleged defendant had been convicted
of burglary on June 23, 1988. Count 2 of the information
alleged, on or between August 30, and September 1, 2010,
defendant committed grand theft of property exceeding $950. (§ 487, subd. (a).) The jury acquitted defendant of count 2 and
two lesser included offenses of attempted grand and attempted petty theft. The jury deadlocked on a third potential
lesser included offense of attempted petty theft. The trial court granted a mistrial as to the
third lesser included offense. The trial
court granted the prosecution’s motion to dismiss count 2 pursuant to
section 1385, subdivision (a).
The
trial court placed defendant on formal probation for three years. Defendant was ordered to pay a: restitution fine of $200 (§ 1202.4,
subd. (b)(1)), $200 (§ 1202.45); probation restitution fine of $200 (§
1202.44); $40 court security assessment fee (§ 1465.8, subd. (a)(1); and
$30 criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)). The oral pronouncement of judgment gave
defendant three days for actual time served.
The trial court did not grant defendant any conduct credits. However, the minute order states that
defendant received six days of credit consisting of three days of actual credit
plus three days of conduct credit.
II. FACTS
Defendant
met Lynn Henny through a dating Web site in July 2010. The two dated for about a month. Defendant went to Ms. Henny’s home about
5 to 10 times. He spent the night at her
house on a few occasions. Defendant, who
was an electrician, agreed to repair some pool lights at Ms. Henny’s
home. In August 2010, about a month into
their relationship, Ms. Henny noticed the safe in her bedroom closet was
open. She discovered that a number of
items were missing from the safe. When
she reviewed her home security monitor, Ms. Henny observed defendant
removing items from her safe.
Ms. Henny subsequently contacted the police.
As a result of
the theft allegations, Los Angeles Police Department officers executed a search
warrant on defendant’s residence. The
residence was owned by defendant’s father.
Defendant was the only person living in the home. But, defendant’s father stored items
there. While searching the residence,
officers discovered a six-shot revolver loaded with five rounds. The revolver was found in a gun case
underneath the bed in the master bedroom.
Defendant slept in the master bedroom.
Defendant told officers the gun belonged to him. Defendant kept the gun for
self-protection.
Defendant
had been convicted of felony burglary on June 23, 1988. Defendant testified that he did not believe
the 1988 conviction was a felony. According
to defendant, the last time he had any problems, he was “informed†that his
conviction was a misdemeanor. At the
sentencing hearing, defense counsel raised the issue of whether a June 23, 1988 minute order in a co-defendant’s 1988 case suggested the prior
conviction was only a misdemeanor. This
was because the minute order showed a burglary conviction was reduced to a
misdemeanor. The trial court rejected
the contention that defendant’s prior conviction was a misdemeanor based on the
June 23, 1988 minute order in the co-defendant’s case. The trial court noted that defendant had pled
guilty on July 21 and was sentenced on September 29, 1988. The superior court file
from the 1988 case indicated that defendant’s burglary conviction had
III. DISCUSSION
We
appointed counsel to represent defendant on appeal. After examination of the record, appointed
appellate counsel filed an “Opening
Brief†in which no issues were raised.
Instead, appointed appellate counsel requested this court to
independently review the entire record on appeal pursuant to
441. On September 12, 2012, we advised defendant that he had 30 days within which to personally
submit any contentions or arguments he wishes us to consider. No response has been received. We have examined the entire record and are
satisfied appointed appellate counsel has fully complied with her
responsibilities. No argument exists favorable
to defendant on appeal. (
277-284; People v. Kelly (2006) 40
Cal.4th 106, 112-113; People v. Wende,
supra, 25 Cal.3d at p. 441.)
We
asked the parties to address an issue related to presentence conduct
credit. As previously noted, there is a
discrepancy between the oral pronouncement not granting any conduct credit and
the clerk’s minute order granting three such days. Defendant is not entitled to any conduct
credits. First, the trial court’s oral
pronouncement controls over the clerk’s minute order. (People
v. Mesa (1975) 14 Cal.3d 466, 471; People
v. Hong (1998) 64 Cal.App.4th 1071, 1075-1076) The clerk’s error in the minutes may be
corrected on appeal. (
181, 185, 189; People v. Rosas (2010)
191 Cal.App.4th 107, 113-114) Second,
defendant’s commitment offense was based on his firearm possession on December
21, 2010. Defendant was arrested on the
same date. Defendant was released on
bail on December 23, 2010. Defendant was
sentenced on March 27, 2012. The current
version of section 4019, subdivision (e) prohibits any presentence conduct
credits because defendant was only in custody three days. (People v. Garcia (2012) 209 Cal.App.4th 530, 538-541; Stats. 2010,
ch. 426, § 2.)
IV. DISPOSITION
The clerk’s
minute order is corrected to delete three days of conduct credit for a total
presentence custody credit of three days.
The judgment is affirmed in all other respects.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK,
J.
KRIEGLER, J.
to the Penal Code unless otherwise indicated.
