Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1218985, Ricardo Cordova, Judge.
Patricia Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.
On November 19, 2006, at approximately 10:48 p.m., Modesto Police Officer Daniel Gonzalez was dispatched to an intersection in Modesto to investigate a report of a green Volkswagen driving with its lights off. The vehicle was pulled over to the curb with its engine on. Gonzalez contacted appellant, Manuel Uribe Covarrubias, who was sitting in the driver’s seat. He arrested Covarrubias after he failed some field sobriety tests. A blood test determined Covarrubias had a .26 percent blood alcohol content.
On May 31, 2007, the district attorney filed an information charging Covarrubias with driving under the influence with one or more separate felony convictions (count I/Veh. Code, §§ 23152, subd. (a) & 23550.5), driving under the influence with a blood alcohol content greater than .08 percent with one or more separate felony convictions (count II/Veh. Code, §§ 23152, subd. (b) & 23550.5), and driving while his driving privilege had been suspended (count III/Veh. Code, 14601.1, subd. (a)). The information also charged Covarrubias with a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and having a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).
On June 20, 2007, the court suspended criminal proceedings and ordered Covarrubias examined pursuant to Penal Code section 1368 to determine his competency to stand trial.
On July 23, 2007, the court reinstated criminal proceedings after finding Covarrubias competent.
On August 22, 2007, Covarrubias pled no contest to count I in exchange for the dismissal of the remaining counts and a stipulated sentence of 28 months, the mitigated term of 16 months on the substantive offense and a 1-year prior prison term enhancement. Additionally, the prosecutor agreed to dismiss the allegation that he had a prior conviction within the meaning of the three strikes law because the prior conviction did not qualify as a strike. After the court took Covarrubias’s no contest plea and Covarrubias waived time for sentencing, the court sentenced him to the stipulated term of 28 months.
On September 12, 2007, the court held a hearing to determine Covarrubias’s presentence custody credit. The court awarded Covarrubias 444 days of presentence custody credit through the date of the hearing consisting of 296 days of actual custody credit and 148 days of conduct credit. (The actual custody days are erroneously listed on the abstract of judgment as 206.)
Covarrubias’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.) However, in a letter filed in this court on April 21, 2008, Covarrubias raises no issues but complains about several things including that his defense counsel told one of his sons that he could get the charges dropped and lied to him that he would be released from custody in January 2008.
Nevertheless, our review of the record disclosed that the court erred in its award of presentence custody credit. Although the court sentenced Covarrubias on August 22, 2007, it calculated his presentence custody credit through September 12, 2007. This was error as explained in People v. Buckhalter (2001) 26 Cal.4th 20:
“‘[T]he court imposing a sentence’ has responsibility to calculate the exact number of days the defendant has been in custody ‘prior to sentencing,’ add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. ([Pen. Code] § 2900.5, subd. (d); see also id., subd. (a).)
“... The agency to which the defendant is committed, not the trial court, has the responsibility to calculate and apply any custody credits that have accrued between the imposition of sentence and physical delivery of the defendant to the agency. (§ 2900.5, subd. (e).)” (Id. at pp. 30-31, italics added.)
Pursuant to Buckhalter, the trial court should have calculated Covarrubias’s presentence conduct credit only through the date of his sentencing on August 22, 2007. On that date Covarrubias had been in custody 277 days. Thus, the court should have awarded him only 415 days of presentence custody credit, 277 days of actual custody credit and 138 days of conduct credit (277 days/4 = 69.25 days; 2 x 69 days = 138 days; 138 days + 277 days = 415 days). Covarrubias is entitled to prison credits to be calculated by the Department of Corrections from and after August 22, 2007.
Following independent review of the record we find that, with the exception of the of the credit issue discussed above, no reasonably arguable factual or legal issues exist.
The judgment is modified to reduce Covarrubias’s award of presentence custody credit from 444 days to 415 days as calculated above. The trial court is directed to file an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.