Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 02F08650, 03F09354
SIMS, J.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
In July 2002, defendant Charles Glen Carver rented a house from Heesook B. Heesook B.’s Citibank credit card statement continued to be mailed to the house, and in August 2002, she received a credit card statement reflecting charges she did not make, including a $1,500 charge to Pacific Bell. According to Pacific Bell, defendant had charged $1,500 to Heesook B.’s credit card to advertise his business, House of Iron, in the telephone book and used the rental address as his business address.
Because defendant pled guilty, the facts of the underlying offenses are taken from the probation reports.
In October 2002, defendant was charged in case No. 02F08650 with identity theft (Pen. Code, § 530.5, subd. (a); undesignated section references are to the Penal Code) and credit card fraud (§ 484g, subd. (a)). In November 2002, defendant pled no contest to credit card fraud in exchange for no state prison at the outset and dismissal of the remaining count. The trial court sentenced defendant to the upper term of three years in state prison, suspended execution of sentence, and placed him on four years’ formal probation, on the condition, among others, that he serve 360 days in county jail, with credit for 104 days. He was also ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)) and $2,115.32 in restitution to Citibank (§ 1202.4, subd. (f)). The court denied defendant’s subsequent ex parte requests for additional custody credits and modification of his sentence.
Meanwhile, in March 2002, defendant contracted with the pastor of Sunrise Community Church to install a fence for $6,034. After receiving payment in full, he installed 90 percent of the fence posts but performed no other work. He promised to refund $5,214, but returned just $100.
In May 2002, defendant contracted with Elsie H. to replace a damaged fence and brick wall for $2,650. After receiving a $1,000 down payment, he removed a portion of the damaged fence, did minimal work on the brick wall, then failed to return to complete the job.
In July 2002, defendant contracted with Paragat S. to install iron gates and perform other work. Defendant received a $1,500 down payment, and after performing some work, received an additional $1,500 progress payment. A disagreement later arose between defendant and Paragat S., and defendant removed a portion of the fencing he had installed along with a portion of the existing fencing and performed no additional work.
In August 2002, defendant contracted with Suresh M. to make and install ornamental iron railings and gates for $1,800. Although he received a $900 down payment, he performed no work.
Defendant provided each of the victims with a business card/door tag that listed a contractor’s license number; however, he did not have a contractor’s license.
In May 2004, defendant was charged in case No. 03F09354 with four counts of grand theft (§ 487, subd. (a)), five counts of fraudulent use of a contractor’s license number (Bus. & Prof. Code, § 7027.3), five counts of engaging in the business of a contractor without a license (id. § 7028), four counts of advertising for construction and work of improvement without a valid license (id. § 7159, subd. (d)), and four counts of unlawful advertising (id. § 7027.1, subd. (a)). In September 2004, defendant pled no contest to two counts of grand theft in exchange for no state prison at the outset, a one year county jail lid, and dismissal of the remaining counts with a Harvey waiver as to restitution. He was placed on five years’ formal probation on the condition, among others, that he serve one year in county jail, with credit for two days. The court ordered defendant to pay various fines and fees, including a $400 restitution fine and victim restitution as follows: $5,114 to Sunrise Community Church; $1,450 to Elsie H; $1,500 to Paragat S; $900 to “Malhorta”; $250 to “Kannon”; and $2,000 to “Anya.”
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
In March 2007, defendant admitted violating the conditions of his probation in cases Nos. 02F08650 and 03F09354 in exchange for imposition of the previously suspended three-year prison sentence in case No. 02F08650. The trial court terminated defendant’s probation in both cases, imposed the previously suspended three-year prison term in case No. 02F08650, with credit for 373 days (360 days for time served in case No. 02F08650, nine actual days in presentence custody and four good conduct days), and transferred “any outstanding victim restitution” in case No. 03F09354 to case No. 02F08650. The court denied defendant’s subsequent ex parte applications for additional conduct credit.
Defendant appeals. His request for a certificate of probable cause was denied.
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, supra, 25 Cal.3d at p. 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.
While this case was pending on appeal, defendant’s appellate counsel sought four additional days of custody credit. (§§ 1237.1, 4019; People v. Fares (1993) 16 Cal.App.4th 954, 958.) He argued that at his initial sentencing hearing in case No. 02F08650, the trial court should have awarded him 108, and not 104, days of presentence custody credits. More particularly, he asserted that because he was in actual custody for 72 days, he was entitled to 36 days of conduct credit, for a total of 108, not 104, days. The trial court explained defendant was correctly credited with 104 days of actual custody credit for the time he spent in custody from October 10, 2002, until his sentencing on January 21, 2003, but that “52 days [of conduct] credit were omitted from the record.” Accordingly, the court amended “the record from January 21, 2003, to reflect those credits.” Having done so, the court found defendant was not entitled to any additional credit on his current sentence. “At sentencing defendant was required to serve 360 days as a condition of probation. Because of the 156 days of credit [104 actual days plus 52 conduct], he should have served the remainder of that term, which would be 204 days, or 136 actual days and 68 days of custody credit. Jail records show that defendant was released on June 6, 2003, which is 136 days after sentencing. Thus, defendant served the 360-day term that was ordered. This term was correctly credited as 360 sentenced days.”
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. However, we do note an apparent error in the abstract of judgment. “[A]ny outstanding victim restitution” in case No. 03F09354 was transferred to case No. 02F08650. Defendant previously had been ordered to pay victim restitution to Elsie H. in the amount of $1,450. However, section 7 of the abstract of judgment lists this amount as $145. We shall direct the trial court to amend the abstract of judgment to reflect that defendant was ordered to pay Elsie H. $1,450. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend section 7 of the abstract of judgment to reflect that defendant was ordered to pay Elsie H. $1,450 and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.