Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 198330
McGuiness, P.J.
Appellant Gregory Burgos was sentenced to two years in state prison after pleading guilty to making criminal threats in violation of Penal Code section 422. Appellant’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing. We modify the judgment to correct an error in the calculation of appellant’s presentence custody credits. Except as modified, the judgment is affirmed.
Factual and Procedural Background
On the evening of February 13, 2006, Angela Sawyer, a San Francisco police officer, observed a car with expired registration parked in a red zone. The car was located in a “high narcotics area.” Sawyer and her partner drove by the car twice in their patrol vehicle. On both occasions Sawyer saw someone on the street communicating with the passenger in the car. The officers stopped as they approached the vehicle a third time.
Sawyer, who was in a uniform identifying her as a San Francisco police officer, got out of the patrol vehicle and walked toward the driver’s side of the car. She noticed the keys were in the ignition but the car was not running. Appellant was in the driver’s seat fidgeting with a white towel. Sawyer asked appellant to show his hands. Appellant continued to fidget with the towel. Sawyer then drew her firearm, pointed it at appellant, and ordered him to show his hands. Appellant fidgeted some more, then brought out both of his hands simultaneously, with the towel in his left hand and eyeglasses in his right hand. He told Sawyer, “I’m just wiping my glasses.”
Sawyer put away her firearm and asked appellant his name. He replied, “Greg Hobbs.” She then asked for his driver’s license. Although appellant stated he had a California driver’s license, he did not provide it to the officer. After Sawyer told appellant there was no indication in the computer system that a person named Greg Hobbs was licensed to drive in California, appellant told the officer his license was from New York state, and he provided a New York street address with a zip code after some hesitation. When asked to state his birthday, appellant responded with “September 18, 1977,” but he could not state his age when Sawyer asked how old he was. Sawyer learned from a computer check of the car’s license plate that the car was registered to Greg Burgos, not Greg Hobbs.
Sawyer then asked appellant to step out of the car. He asked, “What for?” When she asked him again to get out of the car, appellant responded, “No, I feel safer in the vehicle.” Sawyer then reached into the car and unlocked the door. She opened the door and asked appellant to get out. He turned towards her and said, “I have a gun, and I’m going to fucking kill you.” Then, in an exaggerated motion, appellant reached between the seat and the center console of the vehicle. Sawyer, who feared that appellant was going to shoot her, drew her firearm. She continued ordering appellant to show his hands, but he did not comply.
After Sawyer’s partner broadcast the incident over the police radio, additional officers arrived at the scene. Appellant ultimately showed his hands after officers surrounded the car and asked appellant repeatedly to show his hands. As officers removed him from the car, appellant was noncompliant and very agitated. Appellant was identified as Greg Burgos at the police station through the use of a fingerprint and appellant’s mug shot profile.
Following a preliminary hearing, an information was filed on April 7, 2006, charging appellant with violations of Penal Code section 69 [felony attempt by means of threats and violence to deter and prevent an executive officer from performing a lawful duty], Penal Code section 422 [felony threat to commit crime that would result in death or great bodily injury], Vehicle Code section 2800, subdivision (a) [misdemeanor failure to comply with lawful order of police officer], and Penal Code section 148, subdivision (a)(1) [misdemeanor resisting arrest]. In connection with the charge that appellant had made terrorist threats (Pen. Code, § 422), it was alleged the offense was a serious felony (Pen. Code, § 1192.7, subd. (c)(38)) and that the offense had been committed while appellant was on parole. It was further alleged, pursuant to Penal Code section 667.5, subdivision (b), that appellant had suffered one prior conviction for which he served a prison term. An amended information filed on May 22, 2006, was identical to the originally filed information in all respects except that in the amended information it was alleged that appellant had suffered two prior convictions for which he had served a prison term within the meaning of Penal Code section 667.5, subdivision (b).
Pursuant to a negotiated disposition, appellant pled guilty on May 26, 2006, to making criminal threats in violation of Penal Code section 422. Appellant agreed to be sentenced to the midterm of two years in state prison and to pay a $200 restitution fine. In exchange for the plea, the district attorney agreed to drop the remaining charges and enhancements. Appellant admitted the offense was a serious felony within the meaning subdivision (c)(38) of Penal Code section 1192.7. The court advised appellant that his guilty plea to the Penal Code section 422 violation would constitute a strike under the Three Strikes Law. Counsel for the parties stipulated to a factual basis for the plea based on the preliminary hearing transcript. The court found that appellant had been fully informed of his rights, had voluntarily and intelligently waived them, and entered his guilty plea and admission knowing the consequences of the plea and the admission.
At a hearing on June 23, 2006, appellant expressed a desire to withdraw his plea. The court appointed counsel to investigate and advise appellant with regard to whether any basis existed to withdraw his plea. With the assistance of appointed counsel, appellant subsequently filed a written motion to withdraw his guilty plea on the ground it was not entered knowingly, voluntarily, and intelligently. Appellant’s attorney reported in a declaration that he had learned of a May 19, 2006, letter authored by Roland Levy, M.D., and directed to appellant’s trial counsel. Dr. Levy’s letter was attached to the motion and purported to reflect the results of a psychiatric assessment of appellant performed on May 19, 2006, one week before the date he entered his guilty plea pursuant to the plea bargain.
Dr. Levy concluded that appellant had a “bipolar disorder and [was] presently somewhere between mania and hypomania.” Dr. Levy suggested that appellant be reassessed for being placed on medication. According to Dr. Levy, appellant “recognized that he had a mental disorder and expressed a desire for medication.” Appellant’s judgment was described as “mildly to moderately impaired.” However, Dr. Levy concluded: “In his present state, I believe the defendant is very difficult to work with but at the same time I do not see him as being so severely disturbed that he is unable to understand what is going on, nor unable to assist in the preparation and presentation of a defense. I conclude, therefore, that despite his obvious illness, he is competent to proceed with trial and sentencing. Hopefully he will be placed on medication, and this will certainly help.” In the attorney declaration accompanying the motion to withdraw, appellant’s counsel stated that medication had not been given to appellant until after he entered his guilty plea.
At the hearing on the motion to withdraw the plea, appellant’s counsel informed the court appellant would not testify. The district attorney stipulated that “Dr. Levy is experienced in the area of evaluating defendants for competence to stand trial and that the report dated May 19, 2006, was written by him as an evaluation of the defendant regarding his competence.” It was agreed that Dr. Levy’s report would be admitted into evidence. However, the district attorney did not stipulate to the admissibility of any other declarations submitted by appellants’ counsel and objected to their admission as hearsay. The trial court stated it would disregard all hearsay in Dr. Levy’s report. No other evidence was taken on the motion to withdraw the plea.
The court asked appellant whether he wished to testify in support of his motion to withdraw his plea. Appellant responded that he did not. The court then asked appellant if he understood he had the right to testify, to which he responded, “no.” The court asked appellant, “Do you understand that you’re in a courtroom?” Appellant replied, “You really want me to answer that question?” At that point, the court stated: “[T]he court will find Mr. Burgos is being uncooperative and he really does understand what’s going on based on Dr. Levy’s report. Dr. Levy’s report particularly states that in the next to last sentence, ‘I conclude therefore despite his obvious illness, he is competent to proceed with trial and sentencing.’ ” The court concluded that appellant’s claimed unawareness of his right to testify was “merely obstructionist since Mr. Burgos seems to be well aware of his surroundings and the court has observed his communications with counsel earlier this morning.” The court denied the motion to withdraw the plea.
The court proceeded to sentence appellant to the middle term of two years in state prison for violating Penal Code section 422. (See Pen. Code, § 18.) The court also imposed a $20 court security fee, a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and a $200 parole revocation fine pursuant to Penal Code section 1202.45, stayed pending any revocation of parole. Appellant was ordered to provide biological samples as well as thumb and palm prints as required by Penal Code section 296.1, subdivision (a)(1). At the sentencing hearing, the court awarded a total of 394 days of presentence custody credits, composed of 263 actual days served plus 131 days conduct credits under Penal Code section 4019. The abstract of judgment reflects a total of 393 days of presentence custody credits, consisting of 263 days actual time plus 130 days of conduct credits.
Appellant filed a timely notice of appeal. In the notice of appeal, appellant stated his appeal was based on the sentence or other matters coming after the plea and also that the appeal would challenge the validity of the plea. The trial court granted a certificate of probable cause.
Discussion
Appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so.
Our review of the record reveals an error in the trial court’s calculation of presentence custody credit. Appellant was arrested on February 13, 2006, and remained in custody through the date of sentencing, November 3, 2006. He was thus entitled to 264 days of actual time presentence custody credits, reflecting the date of arrest, the date of sentencing, and all days in between. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) The Penal Code section 4019 conduct credits associated with 264 days of actual custody would be 132, for a total of 396 days of presentence custody credits. (See People v. Smith (1989) 211 Cal.App.3d 523, 527.)
The probation report recommended limiting appellant’s presentence conduct credit to 15 percent of the actual time served, apparently upon the assumption appellant had admitted the serious felony allegation. This recommendation was in error, and the trial court properly disregarded it. Appellant’s crime is a “serious felony” within the meaning of subdivision (c)(38) of Penal Code section 1192.7, but it is not a “violent felony” within the meaning of subdivision (c) of Penal Code section 667.5. Because the 15 percent limitation on custody credits applies only to persons convicted of offenses specified in Penal Code section 667.5, subdivision (c), the restriction is inapplicable here. (Pen. Code, § 2933.1.)
The miscalculation of presentence custody credits results in an unauthorized sentence that may be corrected at any time. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-917; cf. People v. Scott (1994) 9 Cal.4th 331, 354.) Penal Code section 1237.1 provides that a request for correction of presentence custody credits should first be presented to the trial court. Although appellant’s counsel asked the trial court by letter dated April 23, 2007, to amend the abstract of judgment to reflect a total of 396 days of presentence custody credit, we have not been advised whether the trial court has ruled upon appellant’s request. However, we need not defer to the trial court or await its ruling on the issue, because the trial court exercises no discretion when computing presentence custody credits but instead performs what amounts to a ministerial duty by applying an established formula. (People v. Jack, supra, 213 Cal.App.3d at p. 917.) Accordingly, we direct the trial court to correct the presentence custody credits, to the extent it has not already done so.
Aside from the ministerial error in the calculation of appellant’s presentence custody credits, which may be corrected without the need for any further briefing, our independent review of the entire record discloses no arguable error that merits further briefing.
Disposition
If it has not already done so, the trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment awarding appellant 396 days of presentence custody credits, consisting of 264 days actual time served plus 132 days of conduct credits. In all other respects, the judgment is affirmed.
We concur:
Pollak, J.
Siggins, J.