Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07SF0737, Matthew S. Anderson, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant pled guilty to the sole charge in the felony complaint, violation of Penal Code section 290, former subdivision (g)(2), failure to register. Imposition of sentence was suspended and he was placed on three years of formal probation.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Counsel noted four potential issues to the court, which we discuss in turn.
I
1. Is a conviction under Penal Code section 243.4 a registerable offense under Penal code section 290?
The felony complaint states: “Ralph Gene Gonzalez was previously convicted of a violation of Section 243.4 (a) of the Penal Code on or about August 01, 1997 in the SUPERIOR Court of the State of California, in and for the County of ORANGE, in case 95CF0686.” The trial judge asked defendant whether or not the statement he made on the form was true. Defendant said it was and then he pleaded guilty to the charge.
Subdivision (c) of Penal Code section 290, formerly section 290, subdivision (g)(2), states: “The following persons shall be required to register: [¶] Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of . . . Section 243.4 . . . .” Section 290 “uses the mandatory language ‘shall’ and leaves no discretion in the trial judge to not require registration if one or more of the listed violations occurs.” (People v. Monroe (1985) 168 Cal.App.3d 1205, 1209.)
2. Was there a sufficient factual basis for defendant’s plea? (See People v. Holmes (2004) 32 Cal.4th 432.)
When taking a plea of guilty, “a trial court is required by Penal Code section 1192.5 to ‘cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.’” (People v. Holmes, supra, 32 Cal.4th at p. 435, fn. omitted.) In Holmes, the trial court asked the defendant whether he did what was charged in the complaint. The Supreme Court held that because the defendant said he did what was charged in the complaint and the complaint adequately contained a factual basis for the plea, Penal Code section 1192.5’s factual basis requirement was satisfied. (Id. at p. 436.)
In Holmes, the Supreme Court also provided some guidance for courts to determine whether or not there is sufficient factual basis for a guilty plea: “In sum, we conclude that the trial court must garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge [citation], or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. [Citation.] If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.]” (People v. Holmes, supra, 32 Cal.4th at p. 442.)
Here, the trial court asked defendant: “You offer a statement related to your plea contained in paragraph number 21, on page 3 of the plea form; is that statement true?” Defendant answered, “Yes.” Defendant’s guilty plea form at paragraph 21 offered the following facts as a basis for his guilty plea: “In Orange County, California, on 7/11/07 I did willfully and unlawfully fail to register pursuant to Penal Code 290, in violation of PC 290 (g) (2), and I was required to register based on a conviction of Penal code Section 243.4(a).” Under the circumstances of this record, we find there was a sufficient factual basis for the trial court to accept defendant’s guilty plea.
3. Whether the trial court violated the terms of the plea agreement by ordering a $20.00 court security fee? (See People v. Crandell (2007) 40 Cal.4th 1301.)
The plea form does not mention a court security fee, but it does say that one of the options for the court is to: “Grant me probation under the terms and conditions set forth on the attached page 5 that I have initialed and signed . . . . I agree to accept probation on the terms and conditions set forth on the attached page 5.” The terms and conditions of probation on page 5 in item 6 states: “Pay mandatory court security fee in the amount of $20.00 [P.C. 1465.8].” Defendant’s initials are next to item 6. After the defendant pled guilty, the court orally told defendant: “There is a safety or security fee.” The minute order states: “Pay Security Fee(s) pursuant to Penal Code 1465.8 totaling $20.00.”
In People v. Crandell, supra, 40 Cal.4th at page 1309, the defendant argued the court’s order that he pay a restitution fine violated his plea bargain agreement. ‘“[N]ormally the defendant should not receive any more punishment than that bargained for’ [citation] . . . .” (Id. at p. 1308.) The core question is whether or not a fine has been “‘actually negotiated and made part of the plea agreement, or whether it was left to the discretion of the court.’” (Id. at p. 1309.)
Here, the record reflects the plea form incorporated the terms and conditions of probation. Those terms and conditions included a payment of a $20 security fee by defendant. Under these circumstances, we conclude defendant agreed to pay the fee as part of his guilty plea.
An additional reason defendant cannot prevail with this argument is that the court’s order did not result in any increased punishment. The Supreme Court recently issued People v. Alford (2007) 42 Cal.4th 749 finding the security fee serves a nonpunitive purpose. (Id. at p. 759.)
4. Were defendant’s custody credits properly calculated? (See Pen. Code, § 4019; People v. Bravo (1990) 219 Cal.App.3d 729, 735; People v. Culp (2002) 100 Cal.App.4th 1278, 1282.
The terms and conditions of probation attached to the guilty plea form states: “Serve 120 days in County Jail. Credit for 70 days actual time served and 34 days good time/work time.” During sentencing, the judge stated: “Mr. Gonzalez, you’re to serve 120 days in Orange County jail. You have credit for 70 days plus 34, for a total of 104 days already served.” The minute order states: “Credit for time served: 70 actual, 34 conduct, totaling 104 days.”
“Section 4019 governs the calculation of presentence custody credits. A convicted felon is eligible for a one-day credit for performing work and another one-day credit for complying with regulations for every six-day period during which he or she is confined in or committed to a county jail prior to sentencing. A minimum commitment of six days is required to earn good/work credits. If the six-day commitment minimum is met, for every four days spent in actual custody, a term of six days is deemed served. [Citations.]” (People v. Culp, supra, 100 Cal.App.4th at pp. 1282-1283, fns. omitted.)
“The proper method of calculating presentence credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits. [Citations.]” (People v. Culp, supra, 100 Cal.App.4th at p. 1283.)
Defendant spent 70 days in jail. That number divided by four, while discounting the remaining two, equals 17. Double that number is 34. Thus the trial court was correct in its award of credits to defendant.
II
Defendant was given 30 days to file written argument in his own behalf. He filed a handwritten brief.
Defendant first informs us that a public defender mistakenly believed he had “3 strikes” which he did not actually have. If there was a mistake, it was apparently corrected because the record does not reflect any three strikes issues.
Defendant also relates that his second public defender told him “he had only two trial[s] in his life.” We cannot discern why this information is given to us and defendant does not explain why he thinks it is significant. We deem it waived. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.)
He also complains that the terms and conditions of probation did not include any indication that a “polygraph is [mandatory] in term of [condition] and now I am being force[d] to or GPS or jail.”
There is nothing in the record before us about such a requirement, although the terms and conditions do require that defendant cooperate with his probation officer and that he obey all orders, rules, regulations and directives of the probation department. Another of the probation terms and conditions in the record before us states: “I understand that the Court ultimately determines the conditions of probation, and I have the right to request the Court to modify or eliminate any condition imposed by the Probation Department that I believe is unreasonable.”
On appeal, defendant must cite to the record on appeal to support his arguments. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Since the record does not include facts to support defendant’s complaint about the probation department, we will not consider the issue.
Defendant’s last contention is: “D.A. Mike Kovo modifi records [illegible word] 2434d to 243a.” We cannot ascertain the import of this information and therefore we deem it waived. (Schubert v. Reynolds, supra, 95 Cal.App.4th at p. 109.)
III
We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.