Opinion
F050007
12-7-2006
THE PEOPLE, Plaintiff and Respondent, v. JOHN BENEVIDES PUEBLA, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Hill, J., and Kane, J.
A jury convicted appellant John Puebla of second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c)) and misdemeanor battery (Pen. Code, § 242). The court imposed the three-year midterm on the former offense and, pursuant to Penal Code section 654, stayed sentence on the latter offense. The court awarded appellant 111 days of presentence credits, consisting of 97 days actual time credits and 14 days conduct credits.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this courts invitation to submit additional briefing.
K-Mart loss prevention agent Joshua Wilkinson testified to the following. He saw appellant remove from store shelves a $3.50 battery terminal cable and $5.00 "nail set"; put the items in his pocket; purchase another battery terminal cable; and leave the store. Wilkinson confronted appellant outside the store. Appellant tried to push Wilkinson out of the way and threatened to cut Wilkinson with a knife. Wilkinson tried to block appellants path and get him to go back into the store. Appellant pushed Wilkinson and Wilkinson fell to the ground. Wilkinson grabbed appellant and the two struggled. Eventually, appellant appeared to calm down, but then he struck Wilkinson and began to run away. Wilkinson caught appellant and eventually handcuffed him and escorted him to an office in the store. Wilkinson found both battery terminal cables on the ground outside the store in the area of the altercation. He found the nail set inside the store. The only time appellant was in a position to drop an item in the spot where Wilkinson found the nail set was when Wilkinson was escorting appellant to the office.
Following independent review of the record, we have concluded as follows. Appellant was arrested on November 10, 2005, and remained in custody through the date of sentencing, February 15, 2006. He was thus entitled to 98 days of actual time presentence custody credits, reflecting the date of arrest, the date of sentencing and all days in between. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) As indicated above, however, the trial court awarded appellant 97 days of actual time credits. Therefore, appellant is entitled to one additional day of actual time credits. He is not entitled to additional conduct credits. (Pen. Code, § 2933.1, subd. (c)).
We have further concluded based on our independent review of the record that no other reasonably arguable legal or factual issues exist.
DISPOSITION
The trial court is directed to issue a modified abstract of judgment reflecting presentence credits of 112 days, consisting of 98 days actual time credits and 14 days conduct credits. In all other respects, the judgment is affirmed.