Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC252548
ELIA, JUDGEPursuant to a negotiated disposition, on April 10, 2007, defendant Thien Vo pleaded no contest to one count of forgery of a check (Pen. Code, § 470, subd. (d), count one) and one count of grand theft of personal property of a value over $400 (Pen Code, §§ 484, 487, subd. (a), count five). Further, defendant admitted that he had a prior conviction for first degree burglary (Pen. Code, § 459) and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
In exchange for his no contest pleas, defendant was promised his sentence would be five years in state prison (top/bottom). When the court sentenced defendant on April 13, 2007, the court imposed the negotiated sentence of five years consisting of the following: the mitigated-term of 32 months on count one; a consecutive term of 16 months (one third the mid-term) on count five; plus a consecutive term of 12 months for a prior prison term.
It appears that after he was sentenced, defendant filed a Romero motion, which the court denied as untimely.
On June 6, 2007, defendant filed a timely notice of appeal. Defendant requested a certificate of probable cause on the ground that he was "not fully informed" regarding his plea. Further, his plea was taken under duress. Defendant alleged that his counsel was ineffective in refusing to inform him of his rights to a trial. The court denied defendant's request for a certificate of probable cause.
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. On January 1, 2008, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396], we have reviewed the entire record and have concluded that, with the exception of an arithmetical error in the calculation of defendant's total custody credits, there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)
The facts underlying each count are taken from the probation report.
On November 21, 2001, a representative of Wells Fargo Bank's Investigation Department contacted the San Jose Police Department. The representative reported that from August 3 through August 7, 2001, defendant had deposited four separate cashier checks into his personal bank account with Wells Fargo via automatic teller machines (ATMs).
The first check defendant deposited on August 3, 2001, was made payable to defendant in the amount of $4,453. It was deposited into a Bank of the West ATM located on San Felipe Road in San Jose. On the same day, defendant deposited $4,197 at a Bank of the West ATM located on Tully Road in San Jose.
On August 4, 2001, defendant withdrew $4000 from a teller at a Wells Fargo Bank branch on Stockton Boulevard in Sacramento.
On August 6, 2001, defendant made a third deposit in the amount of $4,343 at a Bank of America ATM on Blossom Hill Road in San Jose. On the same date, defendant made a fourth deposit in the amount of $4,329 at the Bank of America ATM on Tully Road in San Jose. Thereafter, the defendant withdrew $4,000 from a teller at the Wells Fargo Bank branch located at Blossom Hill Road in San Jose.
On August 7, 2001, defendant withdrew $4,000 from a teller at the Wells Fargo Bank branch located on Stockton Boulevard in Sacramento.
In total, the defendant deposited $17,322.00 in fraudulent checks and withdrew $13,260.51, which was Wells Fargo Bank's total loss.
When a probation officer interviewed defendant, defendant explained that a friend, Tai Nguyen, asked him to cash three checks for him each in the amount of $4,000. Defendant received no money from the transactions. Defendant did not know that the checks were forged.
Procedural History
The Santa Clara County District Attorney charged defendant by complaint filed June 27, 2002, with four counts of forgery of a check (Pen. Code, § 470, subd. (d), counts one through four) and three counts of grand theft (Pen. Code, § 487, subd. (a), counts five through seven). Further, initially, the complaint alleged that defendant had three strike priors within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12—one for robbery (Pen. Code, § 211), one for attempted robbery (Pen. Code, §§ 664, 211), and one for first degree burglary (Pen. Code, § 459). In addition, the complaint alleged that defendant had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
The complaint was amended orally to strike the prior strike allegations for attempted robbery. The complaint was amended on March 1, 2007, at a hearing during which defendant entered his pleas. However, it appears that on April 6, 2007, counsel and the court discovered that there was a prior prison charge that had not been addressed at the time defendant entered his initial pleas. Accordingly, the plea hearing was reset for April 10, 2007.
On April 10, 2007, before defendant entered his pleas of no contest, he was advised of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709], and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. Defendant was advised that the maximum potential sentence for the charges to which he would be entering pleas was 13 years. The court advised defendant of the immigration consequences of conviction and other consequences of his pleas of no contest. Counsel stipulated to a factual basis for the pleas. The court found that defendant had been properly advised of the elements of the charges and had been fully informed of his constitutional rights and had made a knowing and intelligent waiver of his rights. Further, the court found a factual basis for the pleas and accepted defendant's pleas. A Vietnamese interpreter assisted defendant during the plea hearing.
After defendant entered his pleas, the court struck the remaining prior prison allegation and the prosecutor moved to dismiss the remaining strike allegation, which the court did. Defendant waived time for sentencing.
As noted, on April 13, 2007, the court sentenced defendant to an aggregate term of five years in state prison. In addition, the court ordered defendant to pay a restitution fine of $200 pursuant to Penal Code section 1202.4. The court imposed and stayed a parole revocation fine in the same amount. (Pen. Code, § 1202.45.) The court ordered defendant to pay $13,260.51 in direct victim restitution. (Pen. Code, § 1202.4, subd. (f).) The court imposed a $20 court security fee pursuant to Penal Code section 1465.8, and a $20 fine pursuant to Penal Code section 1202.5. Finally, the court awarded defendant 169 days actual credit, plus 84 days credit pursuant to Penal Code section 4019.
However, when the court awarded defendant's custody credits, the court made an arithmetical error in announcing the total credits. This error was recorded by the court clerk and then transferred to the abstract of judgment.
On April 8th, 2008, this court informed appellate counsel of the error. We gave counsel the opportunity to brief the issue. Counsel for defendant agrees with this court's assessment of the custody credits issue. As a result, we will order the lower court to amend the abstract of judgment to reflect that defendant has a total of 253 days credit for time served.
The Attorney General did not respond to this court's letter. Accordingly, we assume that the Attorney General concedes the issue.
As a general rule, a defendant is supposed to have the trial court correct a miscalculation of presentence custody credits. (Pen. Code, § 1237.1; People v. Mendez (1999) 19 Cal.4th 1084, 1101 [Court of Appeal need not address such issue for first time on appeal]; People v. Meza (1995) 38 Cal.App.4th 1741, 1749 [urging counsel to bring such issues to attention of trial court and declining to reach the issue on appeal, where Attorney General does not concede the mathematical error].) However, in a case such as this where this court has already conducted a complete review of the record, in the interests of judicial economy, we resolve the custody credits issue. (See People v. Guillen (1994) 25 Cal.App.4th 756, 764, [when the issue is essentially arithmetical in nature, involving no factual assessment or exercise of discretion and, in fact, will take no more than a few minutes of appellate time, it is far more economical to resolve it through the appellate process than to require the institution of a trial court proceeding].)
Disposition
The judgment is modified to reflect an award of 253 days custody credits. As so modified the judgment is affirmed. The Superior Court is directed to prepare an amended abstract of judgment that reflects the correct award of custody credits and transmit the amended abstract of judgment to the Department of Corrections.
WE CONCUR: RUSHING, P. J., PREMO, J.