Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04-2253, 04-1944.
ROBIE, J.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2004, in case No. 04-1944, defendant Joseph Edward Robinson attempted to take a 1970 Chevrolet parked in Yreka. Three months later, in November 2004, in case No. 04-2253, defendant got into a physical altercation with a female and her neighbor in Yreka. He wielded a baseball bat during the incident.
In December 2004, defendant pled guilty to unlawful taking of a vehicle and assault with a deadly weapon. He admitted a prior theft allegation, an on-bail allegation, and a prior prison term allegation. In exchange, several related counts were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
Defendant was sentenced to state prison for six years, consisting of three years for assault, one year for vehicle theft, and two years for the on-bail enhancement. Execution of sentence was suspended and defendant was placed on probation for six years.
In April 2005, defendant failed to appear in court for proof of enrollment in a batterer’s treatment program. In May 2005, he admitted that he violated his probation by failing to appear. Probation was reinstated and modified.
On November 3, 2005, defendant was arrested on a new charge of unlawful driving or taking of a vehicle. He was arraigned on this charge in May 2006 (case No. 05-2230). This case proceeded to trial on August 9, 2006, and a mistrial was declared on August 10, 2006. This case was then dismissed on September 20, 2006.
Previously, in July 2006, defendant admitted violating probation in cases Nos. 04-1944 and 04-2253 by: (1) failing to report to the probation officer and having his whereabouts unknown; and (2) obtaining an out-of-state conviction for reckless driving.
After the mistrial and dismissal of the new case, on September 26, 2006, the court sentenced the defendant on his previously admitted violations of probation and the execution of the state prison sentence was ordered. By ex parte motion in April 2007, the sentence was modified from six years to five years eight months. Defendant was awarded 239 days of custody credit and 118 days of conduct credit in case No. 04-2253, plus six days of custody credit and two days of conduct credit in case No. 04-1944. He was ordered to pay a $2,400 restitution fine and a $2,400 restitution fine suspended unless parole is revoked.
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, supra, 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’S SUPPLEMENTAL CONTENTIONS
Defendant filed a supplemental brief raising four contentions of error.
He first claims he never served the sentence that underlay the prior prison term allegation. Defendant admitted that allegation as part of a negotiated plea in which several counts were dismissed. Since his contention effectively challenges that plea, it is barred by his failure to obtain a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.) In any event, defendant’s negotiated state prison sentence consists of the principal term of three years, the subordinate term of eight months, and the on-bail enhancement of two years. The prior prison term allegation did not result in any additional time. No prejudice appears.
Defendant next contends the probation officer’s supplemental report, filed September 26, 2006, was biased in that it described an unrelated case of vehicle theft (case No. 05-2230) as “pending . . . proceeding through Court,” even though the case had recently been dismissed without prejudice on motion of the prosecutor. Defendant’s trial counsel raised this point at sentencing, and the prosecutor correctly responded that the probation report did not “condition the recommendation on a conviction in that other case.” The trial court stated that it “is not considering the dismissed case in any way in determining the appropriate outcome of these violations of probation.” Again, no prejudice appears.
Defendant next contends that after he advised the trial court that the assigned probation officer was burdened by a conflict of interest, the probation department assigned a new officer who had his own conflict of interest, in that he is also the probation officer of defendant’s fiancée. However, this asserted conflict does not appear on the appellate record. The trial court’s judgment is presumed correct, and error must be affirmatively shown by an adequate record. (People v. Brown (1988) 204 Cal.App.3d 1444, 1451.) Defendant has not done so.
Defendant lastly contends the sentencing judge had a conflict of interest in that he had just presided over the case that resulted in the mistrial. He is wrong.
The record shows that Judge Kosel presided over the trial in case No. 05-2230 and received the jury deadlock on August 10, 2006. On August 15, 2006, the parties appeared before Judge Kaster and the People announced their intention to retry the case. On September 11, 2006, the parties appeared before Judge Kosel and defendant expressed his desire to proceed to retrial. On September 20, 2006, the parties appeared before Judge Petersen, and the People dismissed case No. 05-2230 without prejudice. Then on September 26, 2006, the parties appeared before Judge Kaster, who pronounced sentence in the present case. Finally, on November 22, 2006, Judge Kosel heard a nonappearance matter related to the filing of a notice of appeal.
This record refutes defendant’s contention that he was sentenced in the present matter by the same judge who had presided over the mistrial in the unrelated case. There was no error.
Our review of the record discloses that the April 10, 2007, amended abstract of judgment fails to list the presentence credits in case No. 04-1944, case “B” on the amended abstract. The abstract must be corrected to reflect six days of custody credit and two days of conduct credit.
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 affirmed. The trial court is directed to correct the April 10, 2007, amended abstract of judgment to reflect six days of custody credit and two days of conduct credit in case “B,” and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P.J., BUTZ, J.