Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR923212.
McGuiness, P.J.
Appellant Thomas Lee Hurst was sentenced to serve six years in prison after he pleaded guilty to unlawfully possessing ammunition (Pen. Code, § 12316, subd. (b)(1)) and admitted serving three separate prior prison terms (§ 667.5, subd. (b)). Appellant’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
On August 3, 2010, Clearlake police officers were dispatched to a home based upon a report that appellant was causing a disturbance. Appellant consented to a search of his bedroom. Inside appellant’s bedroom, the officers found four live nine millimeter cartridges sitting on top of a television.
Because the conviction results from a plea, the facts are derived from the probation report and the factual basis for the plea as stated by the prosecutor and agreed to by defense counsel.
The Lake County District Attorney filed a criminal complaint charging appellant with one felony count of unlawfully possessing ammunition (§ 12316, subd. (b)(1)). The district attorney alleged in connection with the unlawful ammunition charge that appellant’s prior convictions prohibited him from owning or possessing a firearm. The district attorney also alleged that Hurst had suffered two prior strike convictions (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served four prior prison terms within the meaning of section 667.5, subdivision (b).
On August 20, 2010, Hurst reached a negotiated disposition with the prosecution. He agreed to enter a guilty plea to the possession of ammunition count and to admit three of the prior prison term enhancements with the understanding that the prior strikes and remaining prior prison term allegations would be dismissed pursuant to a Harvey waiver. Appellant’s plea exposed him to a maximum prison term of six years.
People v. Harvey (1979) 25 Cal.3d 754.
The probation department recommended imposing the maximum prison term of six years. The probation department recommended the upper term prison sentence based on the following circumstances in aggravation: appellant’s prior convictions were numerous or of increasing seriousness; appellant had served a prior prison term; and appellant’s prior performance on probation or parole had been unsatisfactory. No circumstances in mitigation were identified.
At the outset of the sentencing hearing, defense counsel stated that appellant wished to withdraw his plea. Appellant told the court he wished to speak with his attorney and complained to the court that the restitution fine had been changed and was assessed at $3,500, an amount he could not afford to pay. The court corrected appellant and told him the recommended restitution fine was $600. Appellant withdrew his request shortly after the court explained that appellant was mistaken about the recommended restitution fine.
The court proceeded to sentence appellant, denied probation, and imposed a prison term of six years, composed of the three-year upper term for unlawful ammunition possession plus three consecutive one-year enhancements associated with the prior prison term allegations. The court ordered appellant to pay a $600 restitution fine (§ 1202.4, subd. (b)) and stayed imposition of a $600 parole revocation fine (§ 1202.45). In addition, the court imposed a $30 court security fee (§ 1465.8) and a $90 criminal justice administrative fee (Gov. Code, § 29550, subd. (c)). The court awarded 46 days of actual presentence custody credits. (§ 2900.5.) Over defense counsel’s objection, the court awarded 22 days of presentence conduct credits. (§ 4019.) Defense counsel had urged that appellant was entitled to day-for-day conduct credits under the then-applicable version of section 4019. Specifically, counsel argued that the limitation on conduct credits applicable to persons who had suffered a prior serious or violent felony had to be pleaded and proved by the prosecution. Counsel contended his client was eligible for the more generous conduct credits because he had not admitted the allegations that he suffered a prior strike.
On November 12, 2010, appellant filed a motion requesting day-for-day presentence conduct credits. On November 16, 2010, appellant filed a timely appeal.
The court heard appellant’s motion for additional conduct credits on April 5, 2011. Relying on a case that has subsequently been accepted for review by the California Supreme Court, appellant argued he was entitled to day-for-day conduct credits. The district attorney did not oppose the motion. The court granted the motion and awarded appellant a total of 46 days of conduct credits. On April 13, 2011, the court issued an amended abstract of judgment awarding appellant a total of 92 days of presentence custody and conduct credits.
People v. Jones, review granted December 15, 2010, S187135.
As support for its order, the court cited a decision that has since been accepted for review by the Supreme Court, People v. Lara, review granted May 18, 2011, S192784.
Discussion
Appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so. We have reviewed the entire record and conclude no issue warrants further briefing.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.