Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07901966, Jonathan B. Conklin, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
On September 29, 2006, at approximately 9:30 p.m. in Fresno, appellant, Jermaine Anthony Williams, got into his car with four other individuals to leave a location where people were arguing in the street. As Williams drove past a white car that had been driving erratically during the commotion, shots were fired from Williams’s car at the white car. One shot struck the driver of the white car in the head, killing him. Some witnesses identified Williams as the shooter while others stated only that the bullets came from the driver’s side of Williams’s car.
Williams was arrested on March 8, 2007. During a police interview, Williams stated he passed a gun to someone in the rear seat of his car who then fired at the white car.
On November 1, 2007, the prosecutor filed an information charging Williams with murder (Pen. Code, § 187) and alleging a personal use of a firearm enhancement (Pen. Code, § 12022.53, subd. (d)).
On January 16, 2008, the prosecutor amended the murder charge to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and the arming enhancement to an enhancement pursuant to Penal Code section 12022.5, subdivision (a). Williams then pled no contest to voluntary manslaughter and admitted the amended arming enhancement in exchange for a stipulated, aggregate term of 14 years, the aggravated term of 11 years on the manslaughter offense and a three-year arming enhancement.
On April 14, 2008, the court sentenced Williams to an aggregate 14-year term as per his plea agreement and imposed restitution and parole revocation fines of $1,000 each.
Williams’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Williams has not responded to this court’s invitation to submit additional briefing.
However, in a letter dated April 24, 2009, we gave the parties the opportunity to brief the following issues: 1) whether the court violated the terms of Williams’s plea bargain by imposing a $1,000 restitution fine; and 2) whether Williams is entitled to additional presentence custody credit. We will conclude that the court did not violate Williams’s plea bargain by ordering him to pay a $1,000 restitution fine and that he is entitled to additional presentence custody credit.
On January 15, 2008, prior to entering his plea, Williams completed a change of plea form that under the heading, “Consequences of Plea of Guilty or No Contest,” at paragraph 3(b) stated, “I can also be fined up to $10,000 and ordered to pay restitution in the minimum amount of $200, and up to $10,000.” The change of plea form did not mention a restitution fine. Further, during the change of plea proceedings the court did not mention that a restitution fine from $200 to $10,000 would be imposed. Nor did the court advise Williams that he could withdraw his plea if it did not sentence him in accord with the plea agreement. (See Pen. Code, § 1192.5.)
Penal Code section 1192.5, in pertinent part provides. “If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”
In People v. Walker (1991) 54 Cal.3d 1013, the defendant negotiated a plea agreement in which one of two felony charges was to be dismissed and the defendant was to plead guilty to the remaining charge and receive a five-year sentence and no penalty fine. He was not advised of an additional mandatory restitution fine of at least $100 but no more than $10,000. Nor was he advised of his right to withdraw his plea under Penal Code section 1192.5. Although the probation report recommended a $7,000 restitution fine, the court imposed a fine of $5,000. The defendant did not object to the imposition of the fine at sentencing. (Walker, supra, 54 Cal.3d at p. 1029.)
The Walker court held (1) the imposition of the $5,000 restitution fine “was a significant deviation from the negotiated terms of the plea bargain” and therefore violated the plea bargain; (2) because the Penal Code section 1192.5 advisement was not given, the error was not waived by the defendant’s failure to object; and (3) the error was not subject to harmless error analysis. (Walker, supra, 54 Cal.3d at pp. 1029-1030.) The court reduced the fine to the statutory minimum, an amount that was not a significant deviation from the plea agreement. (Id. at p. 1030.)
The change of plea form advised Williams he could be fined $10,000 and ordered to pay restitution from $200 to $10,000. Thus, he could have been ordered to pay up to $20,000 in fines and restitution. Williams was ordered to pay a restitution fine of only $1,000. Therefore, Williams was adequately informed of the consequences of his plea and the court did not violate his plea agreement.
Additionally, the court awarded Williams 461 days of presentence custody credit consisting of 401 days of presentence actual custody credit and 60 days of presentence conduct credit. However, the record indicates that Williams was arrested on March 8, 2007, and sentenced on April 14, 2008. Thus, he was entitled to 404 days of presentence actual custody credit and 60 days of presentence conduct credit for a total of 464 days of presentence custody credit and we will modify the judgment accordingly.
Further, following independent review of the record we find that with the exception of the issues discussed above, no reasonably arguable factual or legal issues exist.
DISPOSITION
Williams’s award of presentence custody credit is increased from 461 days to 464 days as calculated above. The trial court is directed to prepare an amended abstract that incorporates these modifications and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.