Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR908644-A
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Michael LaFlam (appellant) appeals the sentence imposed following his guilty plea conviction for theft from an elder, in violation of Penal Code section 368, subdivision (d). Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm and modify the judgment only as to presentence custody credits, as explained below.
Further statutory references are to the Penal Code unless otherwise noted.
Facts & Procedural Background
A criminal complaint was filed against appellant on March 3, 2006. Count 1 alleged appellant committed theft and embezzlement with respect to the property of an elder and dependent adult (§ 368, subd. (d)). Count I also carried the special allegation that the value of the property exceeded $50,000, pursuant to section 12022.6, subd. (a)(1). Count II alleged appellant forged a number of checks on a bank account belonging to Madeline La Flam (§ 470, subd. (d)). The complaint also alleged appellant had been convicted of five felonies, for purposes of section 1203, subd. (e)(4). Further, the complaint alleged appellant had been convicted of a serious or violent felony (first degree burglary in violation of § 459) for purposes of section 1170.12, subdivisions (a)-(d) and section 667, subdivisions (b)-(i). The District Attorney filed a declaration in support of the complaint with an Exhibit “A” attached and incorporated by reference. The exhibit included an investigative report stating that appellant wrote thousands of dollars in checks on the account of his mother, Madeline La Flam, for his personal benefit and without the knowledge and permission of his mother. The report attributed a total loss of $58,046.61 to appellant.
Appellant signed a plea form and waiver of rights on June 15, 2007. Appellant agreed to an open plea of guilty to Count I, and agreed to admit the section 12022.6 enhancement to that count, thus facing an aggregate maximum term of 5 years on the current offense. In return, the People agreed to dismiss Count II as well as the prior serious or violent felony allegation. At the change of plea hearing on June 15, 2007, the parties stipulated that the factual basis of the plea was contained in the exhibits attached to the declaration in support of the criminal complaint. The court questioned appellant whether he realized that by pleading guilty he was giving up all the rights stated on the waiver of rights form, and appellant replied affirmatively. Appellant acknowledged he faced a maximum sentence of five years on this offense alone. Appellant pleaded guilty to Count I (violation of § 368, subd. (d)) and admitted the special allegation to Count I (§ 12022.6, subd. (a)). The People moved to dismiss the remainder of the complaint pursuant to section 1385, and the court granted the motion. Appellant also executed an Apprendi/Cunningham waiver.
Apprendi v. New Jersey (2000) 530 U.S. 466; Cunningham v. California (2007) 127 S.Ct. 856.
A sentencing hearing was held on July 6, 2007. Defense counsel requested a midterm sentence of two years. The court found no unusual circumstances warranting probation and concluded appellant was ineligible for probation pursuant to section 1203, subd. (e)(4). The court also concluded that the upper term of four years was warranted on account of appellant’s “prior convictions and his recidivism by committing other crimes while on probation or parole.” Additionally, the court imposed a one-year enhancement pursuant to 12022.6. Furthermore, the court determined that this case would be the principal term, and ordered the sentences that appellant was currently serving to be subordinate terms to run consecutive to this case. Accordingly, the uncompleted sentences imposed in Lake County case numbers CR034229 and CR907403 were reduced to one-third the midterm and imposed consecutive to this case, for a total sentence of nine years, eight months. The court imposed restitution to the victim in the amount of $58,046.61, as well as other applicable statutory fines and restitution.
At the sentencing hearing, the trial court declared the total sentence was nine years and four months. However, the trial court subsequently entered a minute order to correct its arithmetical error and confirm the sentence as being nine years and eight months.
At sentencing the parties also discussed the issue of presentence custody credits, and concurred that appellant was not entitled to any credits for the current offense for the time he had been serving on the other two cases (CR034229 and CR907403). But defense counsel noted that “the abstract of judgment in the other cases awarded him credits of 205 days in one case and 60 in the other for which he was sentenced. [¶] Now, those were local custody credits; and since the Court has just done a combined sentencing of all matters, he still is entitled to those.” The Court agreed, stating: “We can’t take away credits that he was previously entitled to just because he’s got a new offense. [¶] So on 34229 he’s to serve - - 137 days of actual time served pursuant to 2900.5 and 68 days of conduct credits. On case 907403 he’s entitled to 40 days of actual time and 20 days in conduct credits. So that will be credited against the total sentence just imposed.” The abstract of judgment does not reflect these presentence custody credits for CR034229 and CR907403.
Discussion
As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellant’s counsel has filed a Wende brief raising no arguable issue, counsel informed appellant of his right to file a supplemental brief, and appellant did not file such a brief. We have also independently reviewed the entire record for potential error. The notice of appeal raised no challenge to the validity of the plea, and we conclude the trial court’s sentencing decision was well within its discretion. (See People v. Trausch (1995) 36 Cal. App.4th 1239, 1247 [“trial court is vested with abundant discretion in sentencing” and an abuse will be found only where the sentencing choice is “arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered”].) However, as noted above, the abstract of judgment did not include the presentence custody credits for CR034229 and CR907403 determined by the trial court at sentencing.
DISPOSITION
The judgment is ordered modified only as to presentence custody credits. The trial court is instructed to amend the abstract of judgment to reflect the presentence custody credits for case numbers CR034229 and CR907403, which the trial court calculated and announced at sentencing in this case. The trial court should then forward a certified copy of the amended abstract of judgment to the Department of Corrections. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.