P. v. Vega

Filed 2/15/06 P. v. Vega 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Butte)

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Defendant Mario Vega entered a negotiated no contest

plea to receiving stolen property (Pen. Code, § 496, subd. (a))^[1] in exchange for dismissal of the remaining count, as well as another pending matter, with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The court suspended imposition of sentence and granted probation subject to certain terms and conditions including the requirement that defendant report to the probation officer.

Defendant failed to report. The trial court revoked defendant's probation and sentenced him to state prison for the midterm of two years. The court also ordered victim restitution in the amount of $12,428.51, reaffirmed the $200 restitution fine imposed at the time defendant was granted probation (§ 1202.4, subd. (b)), and stayed an additional fine in the same amount pending successful completion of parole (§ 1202.45). Defendant was awarded 86 days of presentence credit (43 actual days, 23 days for time spent in the Sheriff's Work Alternative Program (SWAP), and 20 days of conduct credit, calculated using 43 actual days of custody). Defendant filed a notice of appeal.

We appointed counsel to represent defendant. 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 requested supplemental briefing on whether the case should be remanded to the trial court to determine defendant's entitlement, if any, to actual days and conduct days for time spent in SWAP. (See §§ 4024.2, 4024.3; People v. Richter (2005) 128 Cal.App.4th 575; People v. Wills (1994) 22 Cal.App.4th 1810.)

In its supplemental brief, the Attorney General contends the matter should be remanded because the record does not reflect whether defendant voluntarily entered SWAP (§ 4024.2) or was required to do so (§ 4024.3). If defendant voluntarily participated in a section 4024.2 program, he is not entitled to either actual days or conduct days, and if he participated in a section 4024.3 program, he is entitled to both. Here, defendant received either too many actual days or too few conduct days.

In a supplemental letter brief, defendant â€