People v. Silva

Full title: THE PEOPLE, Plaintiff and Respondent, v. HECTOR MANUEL SILVA, SR.…

Court: California Court of Appeals, Third District, Butte

Date published: Sep 18, 2009

No. C061293 (Cal. Ct. App. Sep. 18, 2009)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. HECTOR MANUEL SILVA, SR., Defendant and Appellant. C061293 California Court of Appeal, Third District, Butte September 18, 2009

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Super. Ct. No. CM029372

SIMS, Judge

On April 22, 2008, narcotics task force officers searched the apartment where defendant Hector Manuel Silva, Sr., lived with his spouse and their six children. Officers found two digital scales and a baggie containing 14 grams of suspected cocaine in the master bedroom closet near baby clothing. A baby’s crib was located in the master bedroom. Officers also found a stolen laptop computer. In the living room, officers found pay/owe records. Defendant admitted that he sold drugs to supplement his income.

Defendant entered a negotiated plea of no contest to sale/transportation/offer to sell cocaine (Health & Saf. Code, § 11352, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)). In exchange, the remaining count, child endangerment (Pen. Code, § 273a, subd. (a)), was dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.

The court denied probation and sentenced defendant to state prison for an aggregate term of four years, that is, the midterm of four years for the cocaine offense, and a concurrent two-year midterm for the receiving stolen property offense. The court awarded 213 days of presentence custody credit and ordered defendant to pay a $2,000 restitution fine, a $2,000 parole revocation restitution fine, and a $40 court security fee.

Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)

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 (1979) 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. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

However, we find an error in preparation of the abstract of judgment. The court awarded 143 actual days (65 local days and 78 days for a diagnostic study) and 76 days of conduct credit for a total of 213 days of presentence custody credit. The conduct credit on 143 days amounts to 70 days, for a total of 213 days. Since the trial court awarded 143 actual days and a total of 213 days, the reporter’s transcript must be in error in reporting the trial court awarded 76 days of conduct credit. The abstract of judgment reflects that the court awarded 78 actual days and 65 conduct days for a total of 213 days of presentence custody credit. The abstract of judgment requires correction to reflect 143 actual days and 70 conduct days, for a total of 213 days of presentence custody credit. We will direct the trial court to correct the abstract of judgment accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting 143 actual days and 70 conduct days and to forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: SCOTLAND, P. J., BUTZ, J.