Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF221367B. Joseph A. Kalashian, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Wiseman, A.P.J., Gomes, J., and Dawson, J.
On May 11, 2009, at approximately 2:00 a.m., Visalia police officers on patrol near a shopping center were advised by a witness that he saw two men, later identified as Matthew Langendorfer and appellant, Nicholas Michael Parriera, throwing orange traffic cones and pushing shopping carts onto Mooney Boulevard. After the two men knocked over tables and chairs in an eating area outside a restaurant, they approached two vans in the shopping center parking lot and pounded on the windows. An examination of the vans revealed that the driver’s side window on each van had been broken and their interiors ransacked. A cell phone with the word “driver” written on it was taken from one van.
An officer saw Parriera and Langendorfer running away and detained them. Approximately six feet from where Parriera was detained, the officer found a cell phone with the word “driver” written on it.
On June 25, 2009, the district attorney filed an information charging Parriera with two counts each of second degree burglary (counts 1 & 2/Pen. Code, § 459) and of petty theft with a prior (count 3 & 4/§ 666), and one count each of felony vandalism (count 5/§ 594, subd. (a)), and resisting arrest (count 6/§ 148, subd. (a)(1)).
All further statutory references are to the Penal Code.
On July 16, 2009, the trial court allowed the prosecutor to amend the information to allege two prior prison term enhancements (§ 667.5, subd. (b)) and that Parriera had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). Parriera then pled no contest to second degree burglary, vandalism, and resisting arrest and admitted the two prior prison term enhancements and the three strikes allegations. In exchange for his plea, the prosecutor agreed to dismiss the remaining counts and Parriera was promised a stipulated term of 32 months.
On August 13, 2009, the court sentenced Parriera to the stipulated term of 32 months, the mitigated term of 16 months on his second degree burglary conviction doubled to 32 months because of Parriera’s strike conviction, and 90 days each on counts 5 and 6, which were deemed served.
Parriera’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Parriera has not responded to this court’s invitation to submit additional briefing.
However, our review of the record uncovered the following errors. Parriera was in custody in this case a total of 95 days from May 11, 2009, through his date of sentencing on August 13, 2009. The trial court awarded him 143 days of presentence custody credit consisting of 95 days of presentence actual custody credit and 48 days of presentence conduct credit (95 days + 48 days = 143 days). Based on his 95 days of presentence actual custody credit the court should have awarded Parriera only 46 days of presentence conduct credit for a total of 141 days of presentence custody credit (95 days/4 = 23.75 days; 23 days x 2 = 46 days; 95 days + 46 days = 141 days).
It also appears the court erred by its failure to address the prior prison term enhancements Parriera admitted at the August 6, 2009, change of plea proceedings and its failure to dismiss counts 2, 3, and 4. These counts and enhancements are not mentioned in the reporter’s transcript or the clerk’s minute order of Parriera’s August 13, 2009, sentencing hearing. However, one of the enhancements is memorialized in Parriera’s abstract of judgment at section 2 which is reserved for enhancements that apply to particular counts.
This raises the following issues with respect to the enhancements. First, there is no authority for staying a prior prison term enhancement and the court must either impose it or strike it. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) Thus, the court did not have the authority to stay Parriera’s two prior prison term enhancements. Second, a prior prison term enhancement is an enhancement for a prior conviction and does not attach to a particular count (People v. Tassell (1984) 36 Cal.3d 77, 90). Thus, if the court had imposed either of these enhancements they should have been listed in section 3 of the abstract of judgment, which is reserved for enhancements for “PRIOR CONVICTIONS OR PRISON TERMS” and not in section 2 which is reserved for “ENHANCEMENTS TIED TO SPECIFIC COUNTS[.]”
Additionally, the abstract of judgment does not indicate in section 12 that appellant’s presentence custody credit was calculated pursuant to section 4019.
In view of the foregoing, we will reduce Parriera’s award of presentence conduct credit from 143 days to 141 days as calculated above, dismiss counts 2, 3, and 4, and strike the two prior prison term enhancements.
Further, following independent review of the record, we find that with the exception of the issues discussed above, no reasonably arguable factual or legal issues exist.
DISPOSITION
Parriera’s award of presentence custody credit is reduced from 143 days to 141 days as calculated above, counts 2, 3 and 4, are dismissed, and the two prior prison term enhancements are stricken. The trial court is directed to issue an amended abstract of judgment consistent with this opinion and which shows that Parriera was awarded presentence custody credit pursuant to section 4019. As modified, the judgment is affirmed.