Opinion
B232574
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL D. WILSON, Defendant and Appellant.
Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA076271)
APPEAL from an order of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed with directions.
Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant Michael D. Wilson appeals from the order revoking probation and sentencing him to three years in state prison. We affirm with directions to correct the presentence custody credits recorded on the abstract of judgment.
Defendant informed the trial court that his correct name is Michael Darnell Wilson, rather than Miguel Wilson, as he was named in the information.
FACTUAL AND PROCEDURAL BACKGROUND
Following a mistrial on charges of arson (Pen. Code, § 451, subd. (b)) and possession of flammable material with intent to cause arson (§ 453, subd. (a)), defendant, represented by counsel, entered a negotiated plea of no contest on November 10, 2008, to an amended count of unlawfully causing a fire that caused an inhabited structure to burn (§ 452, subd. (b)). Pursuant to the terms of the agreement, defendant was placed on three years of formal probation, sentenced to 446 days in county jail, with credit of 446 days for time served. The court ordered defendant to pay a $20 security assessment fee and a $200 restitution fine. Defendant was also ordered to obey all laws, court orders and rules and regulations of the probation department. The trial court went on to find the plea had been freely and voluntarily entered, and there was a factual basis for the plea. The remaining counts were dismissed on the People's motion.
All further section references are to the Penal Code.
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On November 23, 2010, defendant's probation was summarily revoked and a bench warrant was issued after defendant failed to appear in court on a possible probation violation. Defendant appeared in court and the bench warrant was recalled on March 15, 2011. A probation revocation hearing was set for April 20, 2011, and defendant was remanded into custody.
At the probation revocation hearing, Albert Barraza, defendant's probation officer, testified that defendant had left the county without written permission when he was arrested in San Bernardino County on September 28, 2010, failed to make payments or to arrange to make any payments towards his court-ordered fines and fees, and failed to report to his probation officer. Defendant was later convicted in San Bernardino County of resisting an executive officer in the performance of official duties (§ 69). Defendant testified that he never failed to report to his probation officer. He also testified that he was arrested in San Bernardino County on a visit to his girlfriend. The two of them argued, and police were called. An officer arrived, handcuffed defendant and beat him up in the patrol car.
At the conclusion of the hearing, the trial court found defendant in violation of probation, declined to reinstate probation, and sentenced defendant to the middle term of three years.
Defendant filed a timely notice of appeal. We appointed counsel to represent him on appeal.
DISCUSSION
After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436.
On September 19, 2011, we advised defendant that he had 30 days within which to submit personally by brief or letter any grounds of appeal, contentions or arguments he wanted us to consider. We have received no response to date.
In our independent review of the record, we discovered an error in the abstract of judgment. In calculating defendant's presentence custody credit, the trial court noted that defendant "gets the original 446 days." Adding the new credits accrued, the trial court calculated: "Credits are 446 plus 41 plus 41 for a total of 528 days." The abstract of judgment, however, reflects presentence custody credit of only 82 days, 41 actual days and 41 days of conduct credit. This error must be corrected.
In all other respects, we are satisfied that defendant's attorney has complied fully with the responsibilities of counsel. No arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order revoking probation and imposing a three-year state prison sentence is affirmed. The trial court is directed to correct the abstract of judgment to show presentence custody credit of 528 days, consisting of 339 days of actual credit and 189 days of conduct credit, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.