Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS100486E.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Eric Amaro was charged by first amended information filed May 2010, with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1), and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). The information further alleged that the offense in count 1 was committed for the benefit of, at the direction of, or in association with the “Northern Riders, ” a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code.
In September 2010, defendant pleaded no contest to count 1 (§ 245, subd. (a)(1)) and admitted the gang enhancement (§ 186.22, subd. (b)(1)), with the understanding that he would receive a sentence of four years, that count 2 would be dismissed, and that his sentence in another case would run concurrently.
According to the probation officer’s report, which was based on a sheriff’s report and testimony from the preliminary examination, defendant and at least four other inmates at the Monterey County Jail assaulted another inmate. According to the victim, he and his attackers were members of the Northern Riders gang, which was founded by members of the Nuestra Familia gang at High Desert State Prison. The Northern Riders gang held a meeting at the jail, and the victim was attacked after he had a disagreement with two members and he threatened to leave the gang. Defendant hit the victim with his fist, as did others. While on the ground, the victim attempted to “cover” himself and felt several attackers “ ‘stomping’ on his back with their feet.” When the victim was able to return to his bunk, he was warned by one of the attackers that “they would ‘slice’ him if he left the pod prior to visiting the next day and caused everyone’s visits to be suspended.” The victim remained in the pod while members of the Northern Riders gang watched him, and he did not leave the pod until he felt it was safe the following day. The victim was taken to the infirmary and examined. He had bruises around one eye and scratches on his face and body.
On October 8, 2010, defendant filed a sentencing memorandum contending that he was entitled to conduct credit calculated at 50 percent pursuant to the January 2010 version of section 4019, and section 2933, subdivision (e)(1) as amended effective September 28, 2010.
On October 15, 2010, the trial court sentenced defendant to four years in prison, based on the lower term of two years for the assault (count 1) and the lower term of two years for the gang enhancement. The remaining count for active participation in a criminal street gang (count 2) was dismissed. Regarding custody credits, the court determined that defendant was not entitled to “the enhanced 4019 credits” and that “the one-third or 33 percent rule” applied instead, because defendant’s conviction was for a serious felony due to the gang enhancement. Accordingly, the court granted 392 days of custody credits, consisting of 262 actual days plus 130 days conduct credit. The court also ordered defendant to pay various fines and fees and to register pursuant to section 186.30.
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed a brief which states the case and facts but which raises no issues. We notified defendant of his right to file written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
WE CONCUR: MIHARA, J., LUCERO, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.