Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR024489
BUTZ, J.On May 1, 2007, defendant Kasey Frederick Hoffman-Brown entered a supermarket, stole salami and a bottle of alcohol and, when confronted at the door by employees of the store, denied it and fled. He dropped the items on the ground during his flight. He was caught by an officer.
An information charged defendant with burglary, robbery and petty theft with a prior theft conviction. It was further alleged that defendant had two prior prison terms and two strike priors.
Defendant entered a negotiated plea of guilty to second degree robbery (Pen. Code, §§ 211, 213, subd. (a)(2)--count II) and admitted two prior prison terms and one strike prior in exchange for dismissal of the remaining counts and allegations and a stipulated aggregate state prison term of eight years. The court sentenced defendant to state prison accordingly, that is, six years for the offense (the midterm of three years, doubled for the strike prior) plus two one-year enhancements for the prior prison terms.
Defendant appeals. He did not obtain a certificate of probable cause (Pen. Code, § 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 (1979) 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.
Defendant filed a supplemental brief, (1) challenging the factual basis for his plea and (2) arguing counsel rendered ineffective assistance.
Initially, we consider whether the appeal should be dismissed. When defendant entered his plea, he waived his right to appeal, in writing and orally. The plea form reflects the following: “I understand that I have the right to appeal my conviction. I hereby give up this right, and agree that I shall not appeal this conviction.” At the entry of plea hearing, the court advised:
“THE COURT: Do you have any questions about anything stated on this form?
“[DEFENDANT]: No, Your Honor.
“THE COURT: Do you understand the rights you are giving up by your intended plea of guilty and admission of the prior strike and two prison prior enhancements?
“[DEFENDANT]: Yes.
“THE COURT: Do you have any questions?
“[DEFENDANT]: No, sir.
“THE COURT: One of [the] rights you indicate you are giving up is your right to appeal from the conviction that will result from your plea; is that correct?
“[DEFENDANT]: Yes, sir.
“THE COURT: Did you discuss with your attorney what your right to appeal involves?
“[DEFENDANT]: Yes, sir.
“THE COURT: Do you understand from that discussion, Sir, that you take an appeal by filing with the clerk of this court within 60 days of the date of sentencing written notice that you appeal? When such a notice is filed, then the case is sent [to] the Court of Appeal in Sacramento for review. The Court of Appeal will appoint an attorney to represent you in that court. Do you understand these things?
“[DEFENDANT]: Yes, sir.
“THE COURT: Do you have any questions about what your right to appeal involves?
“[DEFENDANT]: No, sir.
“THE COURT: Having this in mind, do you waive your right to appeal from the conviction that will result from your plea and admissions?
“[DEFENDANT]: Yes, sir.
“THE COURT: Do you concur, Counsel?
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: The Court accepts that waiver.”
Assuming the appeal should not be dismissed, defendant’s contention that the factual basis for the plea did not support a finding of force or fear for the robbery challenges the evidentiary support for his conviction which is waived by his plea. (People v. Turner (1985) 171 Cal.App.3d 116, 125-126.)
In any event, defendant pleaded guilty to robbery, in writing and orally. He stated in writing that he was “pleading guilty to take advantage of a plea bargain” and that his “attorney will stipulate to a factual basis for [his] plea.” Defendant faced 25 years to life as a three strikes offender. The parties stipulated that the court could rely upon the preliminary hearing transcript for the factual basis for the plea. The preliminary hearing transcript is not part of the record on appeal.
Defendant contends that counsel rendered ineffective assistance in failing to pursue defendant’s request to use the jail library and to challenge the factual basis for his plea. Both alleged deficiencies occurred prior to defendant entering his plea. Defendant waived his right to appeal. Further he did not obtain a certificate of probable cause. And he argued that his attorney could stipulate to a factual basis for the plea. The clerk’s transcript shows that, contrary to defendant’s claim, defense counsel did pursue defendant’s request to use the library but the trial court denied the request. The record does not include a reporter’s transcript of this hearing. We reject defendant’s contentions.
We note an error in the judgment. The trial court miscalculated the number of conduct credit days. Fifteen percent of 57 actual days is eight days, not 14 days. (Pen. Code, §§ 2933.1, subd. (c), 667.5, subd. (c)(9).) We shall order the judgment modified accordingly. In the interest of judicial economy, we correct this error without first requesting supplemental briefing. Any party wishing to address this issue may petition for rehearing. (Gov. Code, § 68081.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified, reducing the number of conduct days to eight for a total of 65 days of presentence custody credit. 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.
We concur: RAYE , Acting P.J., CANTIL-SAKAUYE , J.