Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Ct.No. FSB047206, Donna G. Garza, Judge. Affirmed with directions.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, Acting P.J.
Defendant pled guilty to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), and admitted two prior convictions for driving with a blood alcohol level of .08 or higher. (Veh. Code, § 23152, subd. (b).) Defendant appeals from the stipulated prison term imposed pursuant to the plea bargain.
BACKGROUND
On December 12, 2004, the victim parked across the street from her family’s residence, exited, and proceeded to remove items from the trunk of her vehicle. As she leaned into the open trunk, a Dodge pickup truck approached at a high rate of speed and collided with the rear of the victim’s vehicle, striking the victim and causing her death. The police were called to the scene and made contact with the defendant who had stopped a short distance away. Defendant smelled of alcohol. When asked if he had been driving the truck, defendant responded affirmatively and told the officer he was drunk. At the time of the incident, defendant had a blood alcohol level of 0.30 percent.
Defendant was charged with one count of murder (Pen. Code, § 187, subd. (a), count 1), and one count of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a), count 2.) It was also alleged that defendant had two prior convictions for driving with a blood alcohol level of .08 or higher. (Veh. Code, § 23152, subd. (b); Pen. Code, § 191.5, subd. (d).)
On May 16, 2008, defendant pled guilty to count 2, the gross vehicular manslaughter charge, and admitted the two prior convictions for driving under the influence of alcohol. The plea bargain included an agreement that count 1 would be dismissed, and that defendant would be sentenced to an indeterminate term of 15 years to life in prison. On June 30, 2008, the court sentenced the defendant in accordance with the plea agreement. On July 9, 2008, defendant filed a notice of appeal following his guilty plea, challenging the sentence only.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has submitted a letter indicating he has nothing to add. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record.
Because the sentence was an integral part of the plea agreement, a challenge to the sentence is a challenge to the guilty plea, which requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 84.) Defendant did not obtain a certificate of probable cause, such as would allow him to challenge the validity of his plea agreement. (Pen. Code, § 1237.5.) There are no arguable issues relating to the sentence.
However, we have found a clerical error in the abstract of judgment. In describing the presentence custodial credits awarded, the abstract indicates that 196 days of conduct credit were awarded pursuant to Penal Code section 4019. Although the numeric calculation of conduct credits was accurate, because the parties agreed the nature of the conviction was as a violent felony (Pen. Code, § 667.5, subd. (c)), his presentence credits were actually calculated under Penal Code section 2933.1.
We have completed our independent review of the record and find no arguable issues. Defendant was effectively represented by counsel in the trial court as well as on appeal.
DISPOSITION
The conviction and sentence are affirmed. The Superior Court clerk is directed to amend the abstract of judgment and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: King, J., Miller, J.