P. v. Katello
Filed 10/3/13 P. v. Katello 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY JAMES KATELLO,
Defendant and Appellant.
C073578
(Super. Ct. No. S12CRF0171)
In July
2012, defendant Anthony James Katello willfully and unlawfully inflicted
corporal injury resulting in a traumatic condition upon V.B., his cohabitant,
within seven years of a previous conviction of
false imprisonment.
Defendant
pleaded no contest to infliction of corporal injury to a cohabitant (Pen. Code,
§ 273.5, subd. (e)(1); count two) and false
imprisonment (Pen. Code, § 236; count five). In exchange, three related counts were
dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) Defendant was to be sentenced to prison for
three years eight months.
Defendant
requested release to the custody of a law enforcement chaplain for an hour or
less to obtain some personal belongings.
He agreed that, should he fail to return for sentencing, he would be
sentenced to five years eight months.
(See People v. Cruz (1988)
44 Cal.3d 1247, 1254, fn. 5.)
Defendant
did not appear for sentencing as ordered.
He was sentenced to prison for five years eight months, awarded 151
days’ custody credit and 151 days’ conduct credit, and ordered to pay a $480
restitution fine (Pen. Code, § 1202.4), a $480 restitution fine suspended
unless parole is revoked (Pen. Code, § 1202.45), an $80 court operations
fee (Pen. Code, § 1465.8, subd. (a)(1)), and a $60 court facilities
assessment (Gov. Code, § 70373).
Defendant obtained a certificate of probable cause.
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
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 elapsed, and we received no
communication from defendant.
Our review
of the record shows that defendant was in presentence custody from July 14,
2012, until his release on October 4, 2012, a period of 83 days; and from his
arrest on November 28, 2012, until sentencing on February 4, 2013, a period of
69 days. Thus, defendant is entitled to
152 days’ custody credit and 152 days’ conduct credit. We modify the judgment accordingly.
Our review
also discloses a minor error on the abstract of judgment. The count two offense is identified as “Use
weapon during felony.†However, weapon
use is not an element of the Penal Code section 273.5, subdivision (e)(1),
offense, and defendant did not admit a weapon use allegation. The offense should be identified, by suitable
notation, as infliction of corporal injury upon a cohabitant.
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 152 days’ custody credit and 152 days’
conduct credit. As so modified, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment, corrected to properly
identify the count two offense, and to forward a certified copy of the amended
abstract to the Department of Corrections
and Rehabilitation.
HULL ,
J.
We concur:
RAYE ,
P. J.
BLEASE , J.
name="_ftn1" title="">[1] Because the matter was resolved by plea,
defense counsel stipulated to a factual basis not recited on the record, and
referral to the probation department was waived, our statement of facts as to
count two is taken from the amended complaint later deemed to be an
information. Count five was added by
oral motion and the facts do not appear in the record.
