Opinion
C081561
05-02-2017
THE PEOPLE, Plaintiff and Respondent, v. VICTOR RAY CASTRO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR F 15-2175)
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. In accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124, we briefly recount the facts and procedural history.
At approximately 12:45 a.m. on April 11, 2015, defendant Victor Ray Castro, armed with a semiautomatic firearm, approached two minors in West Sacramento, put the gun to one of the victim's heads, and then pointed it at the other one, demanding their belongings and shoes. Defendant struck one of the victims in the forehead with the gun. Defendant took their wallets and cell phones and, as he fled the scene, threatened to burn their houses down if they reported anything. The victims called police. Defendant was caught and a loaded semiautomatic handgun was found nearby.
On October 7, 2015, defendant entered a negotiated plea of no contest to second degree robbery (Pen. Code, § 211; count 2), dissuading a witness with force or threat of force or violence (§ 136.1, subd. (c)(1); count 4), and assault with a semiautomatic firearm (§ 245, subd. (b); count 6). In connection with count 2, defendant admitted personal use of a firearm within the meaning of section 12022.53, subdivision (b). Defendant entered his plea and admission in exchange for a stipulated state prison sentence of 16 years and the dismissal of the remaining counts (two more counts of assault with a semiautomatic firearm, another count of robbery, an additional count of dissuading a witness, criminal street gang activity) and allegations (offenses committed for the benefit of a criminal street gang, personal use of a firearm allegations). Defendant waived his right to appeal except as to sentencing errors.
Undesignated statutory references are to the Penal Code. --------
On February 19, 2016, defendant moved to withdraw his plea, claiming he had not been informed that he was pleading to strike offenses. The court denied the motion, finding no good cause. The plea form refuted defendant's claim as did the colloquy when defendant entered his plea.
On March 9, 2016, the court sentenced defendant to state prison for an aggregate term of 16 years, that is, the midterm of three years for robbery plus a 10-year enhancement for personal use of a firearm, a full consecutive midterm of three years for the dissuading a witness offense pursuant to section 1170.15, and a concurrent six-year term for assault with a firearm.
On March 10, 2016, defendant filed a notice of appeal. He did not obtain a certificate of probable cause. (§ 1237.5.)
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 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.
We note an error. At sentencing, the trial court sentenced on the offenses/enhancement but did not award credit because an updated credits report was required from probation. The trial court planned to award custody credit at a later date. The abstract of judgment reflects no presentence custody credit at all. Defense appellate counsel sought correction in the trial court. The trial court forwarded to this court an amended abstract of judgment filed on November 15, 2016, reflecting the presentence custody credit awarded. Defendant was awarded 342 actual days and 50 conduct days for a total of 392 days of presentence custody credit. We do not have the benefit of either a reporter's transcript or a clerk's transcript, reflecting whether the credit was awarded at a hearing, or an updated probation report on credits. Based on the amended abstract alone, there is a calculation error as well as an error that credit was awarded pursuant to section 4019 (box checked next to "4019"). Defendant was convicted of a "violent" felony (robbery—§ 667.5, subd. (c)(9)), so his conduct credit is calculated at 15 percent pursuant to section 2933.1. Conduct days were miscalculated by one day. Defendant is entitled to 51 conduct days pursuant to section 2933.1, for a total of 393 days of presentence custody credit. We modify the judgment accordingly.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to provide for 51 conduct days for a total of 393 days of presentence custody credit. In addition, in part 16 on page two of the abstract of judgment, the box next to "2933.1" is to be checked. The trial court is directed to prepare an amended abstract of judgment accordingly, and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NICHOLSON, Acting P. J. We concur: BUTZ, J. HOCH, J.