Opinion
C042585.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. SACRAMENTO GARCIA SILVA, Defendant and Appellant.
Defendant Sacramento Garcia Silva entered negotiated pleas of no contest to first degree burglary (Pen. Code, § 459; further section references are to this code unless otherwise specified) and assault with, and personal use of, a firearm ( §§ 245, subd. (a)(2), 12022.5, subd. (a)(1)). The plea agreement contemplated that the remaining charges would be dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal. Rptr. 696, 602 P.2d 396) and that, among other things, defendant would receive a term of no more than eight years and four months in state prison.
In accordance with the plea agreement, the court sentenced defendant to the aggregate term of eight years and four months in state prison—the middle term of three years for assault with a firearm, plus consecutive terms of four years for personal use of a firearm and 16 months (one-third the middle term of four years) for burglary, with credit for 40 days of presentence custody plus 6 days of conduct credit. The court imposed a $ 10,000 restitution fine ( § 1202.4) and a $ 10,000 restitution fine suspended unless parole is revoked ( § 1202.45), awarded victim restitution in an amount to be determined, and imposed a $ 10 crime prevention fine ( § 1202.5).
Defendant appeals. He did not obtain a certificate of probable cause ( § 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, 158 Cal. Rptr. 839, 600 P.2d 1071.) 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 record, we find four errors that must be corrected.
(1) The trial court never dismissed the remaining counts as required by the plea agreement. We will modify the judgment to do so.
(2) The court imposed a $ 10 crime prevention fine ( § 1202.5) but failed to impose the corresponding state penalty assessment of $ 10 ( § 1464) and county penalty assessment of $ 7 (Gov. Code, § 76000 et seq.). Since these assessments are mandatory, we must to modify the judgment to correct their omission. (People v. Talibdeen (2002) 27 Cal.4th 1151; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1416.)
(3) The abstract of judgment reflects that conduct credits were awarded pursuant to section 4019. However, since defendant was convicted of a felony with use of a firearm (see 667.5, subd. (c)(8)), the correct statutory authority for conduct credits is section 2933.1. We will order the trial court to correct the abstract of judgment accordingly.
(4) The abstract of judgment also incorrectly reflects the amount of the booking fee ($ 166) and classification fee ($ 36); the trial court orally imposed $ 156 and $ 32, respectively. We will order the court to so correct the abstract.
DISPOSITION
The judgment is modified to dismiss counts one, two, four, and six through eleven and to impose state and county penalty assessments of $ 10 and $ 7, respectively ( § 1464; Gov. Code, § 76000, et seq.), with respect to the crime prevention fine. As modified, the judgment is affirmed.
The trial court is directed to amend the abstract of judgment to reflect the modifications and to correct the statutory authority for conduct credits ( § 2933.1) and the amount of the booking fee ($ 156) and classification fee ($ 32), and to forward a certified copy of the amended abstract to the Department of Corrections.
We concur: SIMS, J., and ROBIE, J. --------------- Notes: The remaining charges were two counts of stalking (§ 646.9, subd. (a)—his wife and son); three counts of criminal threats ( § 422); corporal injury to his spouse (§ 273.5, subd. (a); and three misdemeanor counts of violating a domestic restraining order ( § 273.6, subd. (a)).