P. v. Condrey

Filed 10/27/06 P. v. Condrey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Yuba)

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Defendant John Marshall Condrey entered a negotiated plea of no contest to first degree robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A))^[1] and admitted that a principal was armed (§ 12022, subd. (a)(1)) in exchange for dismissal of the remaining counts and allegations and a sentencing lid of four years.

The court imposed an aggregate state prison sentence of four years, that is, the low term of three years for the offense plus one year for the arming enhancement, suspended execution of sentence and granted probation for a term of three years subject to certain terms and conditions including that defendant complete a theft awareness program, submit to urine tests and abstain from the use of controlled substances.

Defendant admitted violating probation in that he was discharged from the theft awareness program by failing to attend on certain dates, submitted dirty tests and failed to report for testing on other dates.

The court imposed the previously suspended four-year state prison sentence.

Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)

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 elapsed, and we received no communication from defendant.

We note an error in the judgment. Defendant entered his plea in exchange for dismissal of the remaining counts. At the entry of plea hearing, the trial court took the prosecutor’s motion to dismiss the remaining counts under submission. Prior to sentencing, the probation officer prepared a report with proposed conditions of probation which erroneously stated that the remaining counts had been dismissed at the entry of plea hearing. When defendant was granted probation and later when he was sentenced to prison, the trial court did not dismiss the remaining counts as had been agreed. We will modify the judgment, dismissing the remaining counts.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Our review has revealed another error in the judgment.

In accordance with the probation report, the court awarded 39 actual days and six conduct days for a total of 45 days of presentence custody credit. Section 2933.1 provides for a 15 percent limitation on conduct credit for a defendant convicted of certain crimes including robbery. In calculating conduct credit, there is no rounding up. (§§ 667.5, subd. (c)(9), 2933.1, subd. (c); People v. Ramos (1996) 50 Cal.App.4th 810, 815-816 [defendant entitled to “greatest whole number of days” which does not exceed 15 percent]; see also In re Marquez (2003) 30 Cal.4th 14, 25-26; People v. Bravo (1990) 219 Cal.App.3d 729, 734-735; People v. Smith (1989) 211 Cal.App.3d 523, 527.) Fifteen percent of 39 is 5.85; defendant was entitled to five, not six, days of conduct credit and a total of 44, not 45, days of presentence custody credit. The miscalculation of presentence conduct credit resulted in an unauthorized sentence which may be corrected at any time even though the People did not raise the issue below. (People v. Scott (1994) 9 Cal.4th 331, 354 [no waiver of “mandatory provisions governing the length of confinement”].) Accordingly, we shall modify the judgment to reflect five days of conduct credit and a total of 44 days of presentence custody credit.

In the interest of judicial economy, we correct these errors without first requesting supplemental briefing. Any party wishing to address these issues may petition for rehearing. (Gov. Code, § 68081.)

DISPOSITION

The judgment is modified, dismissing the remaining counts and awarding five conduct days for a total of 44 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment to reflect five conduct days and a total of 44 days of presentence custody credit and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P.J.

BUTZ , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.