Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF123633, Douglas E. Weathers, Judge.
Laura L. Furness, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant was sentenced to state prison for two years four months, pursuant to a sentence bargain, when his probation was revoked. He challenges the calculation of his presentence custody time.
OPINION
Gaut, J.
BACKGROUND
Roy J. Talley (appellant) was charged in a felony complaint with auto burglary (Pen. Code, § 459 , count 1), and receiving stolen property (§ 496, sub d. (a)). It was further alleged that he had suffered four prior convictions and served prison terms for each. (§ 667.5, sub d. (b).) At the time set for the preliminary hearing, appellant entered a guilty plea pursuant to a plea agreement. Under the terms of the plea bargain, appellant pled guilty to the receiving stolen property count (count 2), and agreed to imposition of a two-year sentence, execution of which would be suspended for a period of probation.
All further references are to the Penal Code unless otherwise specified.
The facts of the offense are irrelevant to this appeal so we do not need to address them.
On January 5, 2006, the court sentenced appellant to the midterm of two years in state prison, and suspended execution of the term pursuant to the plea bargain. The court placed appellant on probation for three years, with credit for 327 days served in local custody, on condition that he complete the Delancey Street rehabilitation program. The court ordered appellant to pay $110 for booking fees (Gov. Code, § 29550), a restitution fine of $200, victim restitution in the amount of $80, and costs of probation supervision not to exceed $252.
On September 21, 2006, a bench warrant issued for appellant’s arrest based upon the probation officer’s report indicating he had violated several terms of his probation. Specifically, failed to appear for a probation appointment or follow the directives of the probation officer (term 6), failed to notify the probation department of a law enforcement contact within 48 hours after being arrested on a parole hold (term 7), and he had left the Delancey Street rehabilitation program without permission (term 8). On January 9, 2007, appellant admitted violation of term 6 of his probation and was sentenced to the previously suspended term of two years in state prison.
In sentencing appellant, the court awarded 373 days presentence credit, reflecting 249 days actually served and 144 days of conduct credit. The abstract of judgment showed 393 days credit for time served. On January 14, 2007, appellant wrote a letter to the court indicating that in addition to the time served in local custody, he was entitled to credit for time spent at the Delancey Street program, for a total of 514 days presentence custody credit. On January 31, 2007, appellant filed a notice of appeal challenging the calculation of his presentence custody credits.
Subsequent to the filing of the notice of appeal, the trial court forwarded appellant’s letter to the public defender to investigate the credits issue. After this point, there are conflicting entries relating to the credits calculation. On June 6, 2007, the court and counsel appeared for an oral motion by defense counsel to amend the abstract. The clerk’s transcript reflects the court determined that appellant was entitled to 249 days actually served in county jail, plus 124 days conduct credit, plus 154 days served in the Delancey Street program, for a total of 527 days presentence custody credit. The reporter’s transcript for the same date shows the court mistakenly awarded 427 days credit. Further, the abstract was amended to include the new credit calculation under item 7, although item 11 of the form still showed credit for 373 days served.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief 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 that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, issues relating to the calculation of custody credits are not independently appeal able unless the defendant first makes a motion to correct the credits in the trial court. (§ 1237.1.) Here, appellant wrote to the court and it appears the court has attempted to correct the calculation. We find conflicts between the oral pronouncement, the minute order memorializing the modification of the credits, and the amended abstract which contains conflicting entries on lines 7 and 11. The court intended to award 249 days for actual presentence custody, 154 days for time spent in the court ordered rehabilitation program, and 124 days conduct credit, for a total of 527 days. Thus, the reporter’s transcript is in error but the clerk’s minutes are correct. However, line 11 of the abstract still shows 327 days credit for time served. We direct the court to amend line 11 of the abstract of judgment to reflect the corrected number of days credit.
In addition to the credits issue raised in the notice of appeal, the brief on appeal includes two Anders issues: (1) whether there is substantial evidence to support the revocation of probation, and (2) whether the probation reports contained allegations of facts sufficient to revoke probation. Pursuant to the mandate of People v. Kelly, supra, 40 Cal.4th 106, we have independently reviewed the record for potential error. First, the record shows appellant admitted that he violated term 6 of his terms of probation, requiring him to report to the probation officer immediately or within two days of release from custody and to follow all reasonable directives of the probation officer. His admission constitutes substantial evidence to support the revocation of probation.
Second, the probation officer’s allegation of the violation of probation, submitted to the court on September 21, 2006, explains that an appointment letter was sent to the defendant directing him to be at the probation office on August 18, 2006, and that he failed to appear. These facts satisfy the elements of the violation of probation.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The trial court is directed to amend line 11 of the abstract of judgment to reflect 249 days for actual presentence custody, 154 days for time spent in the court-ordered rehabilitation program, and 124 days conduct credit, for a total of 527 days. As modified, the judgment is affirmed.
We concur: Hollenhorst, Acting P. J., McKinster, J.