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People v. Polanco

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 13, 2012
E052685 (Cal. Ct. App. Jan. 13, 2012)

Opinion

E052685 Super.Ct.No. FWV901802

01-13-2012

THE PEOPLE, Plaintiff and Respondent, v. HECTOR MANUEL POLANCO, Defendant and Appellant.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

INTRODUCTION

On January 14, 2010, an information charged defendant and appellant Hector Manuel Polanco (defendant) with threatening a witness under Penal Code section 140, subdivision (a) (count 1); assault by means of force likely to cause great bodily injury under section 245, subdivision (a)(1) (counts 2 & 3); and felony vandalism under section 594, subdivision (b)(1) (count 4). It was also alleged that defendant had suffered four prison priors under section 667.5, subdivision (b).

All statutory references are to the Penal Code unless otherwise specified.

On April 23, 2010, defendant pled no contest to count 1, in exchange for a dismissal of the remaining counts and allegations. On June 25, 2010, defendant was sentenced to four years in state prison. At the time of sentencing, defendant was awarded 172 actual days and 86 conduct days for time served prior to January 25, 2010; and 152 actual days and 152 conduct days for time served after January 25, 2010. This award of credits was based on the version of section 4019 in effect prior to January 25, 2010, and the version of section 4019 in effect after January 25, 2010.

On October 15, 2010, defendant filed a motion to award additional conduct credits. The motion was heard and denied on December 9, 2010. Defendant then filed a timely notice of appeal form the denial of that motion on January 5, 2011.

In this case, defendant had been incarcerated since August 6, 2009. Depending on how his section 4019 credits were calculated, he would have been eligible to be released on August 6, 2011. Therefore, defendant filed a petition for writ of habeas corpus on April 1, 2011, case No. E053247. In the petition for writ of habeas corpus, defendant argued that he was entitled to additional presentence custody credits provided by amended section 4019 because he was sentenced at a time that the amended code section was in effect. We issued an order to show cause. Defense counsel thereafter filed a motion to stay this appeal, which we granted on May 3, 2011. On August 8, 2011, we granted defendant's petition for writ of habeas corpus on the issue of defendant's section 4019 presentence conduct credits. We directed the superior court to amend the sentencing minute order of June 25, 2010, and the abstract of judgment to reflect 648 days of presentencing credit.

On September 19, 2011, we lifted the stay of appeal and requested briefing.

STATEMENT OF FACTS

The facts underlying the case are not relevant to the appeal as the issue on appeal only involves presentence credits under section 4019.

ANALYSIS

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed briefs under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief in both cases, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKinster

Acting P.J.
We concur:

Richli

J.

Miller

J.


Summaries of

People v. Polanco

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 13, 2012
E052685 (Cal. Ct. App. Jan. 13, 2012)
Case details for

People v. Polanco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HECTOR MANUEL POLANCO, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 13, 2012

Citations

E052685 (Cal. Ct. App. Jan. 13, 2012)