Opinion
C067124 Super. Ct. No. CRF07357
10-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN SIMON YDIARTE, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed appellate counsel for defendant John Simon Ydiarte has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall modify the judgment to subtract unearned conduct credit, as explained post, and otherwise affirm.
BACKGROUND
On September 12, 2007, as part of a plea agreement, defendant pleaded no contest to felony vehicle theft. (Veh. Code, § 10851, subd. (a).) A misdemeanor charge of leaving the scene of an accident was dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The stipulated factual basis showed that on or about May 31, 2007, defendant took a vehicle with the intent to permanently deprive the owner of title and possession, crashed the vehicle, and then fled the scene.
On October 9, 2007, the trial court suspended imposition of sentence and placed defendant on three years of probation. One condition of probation was that defendant serve 68 days in jail, but he was given credit for time served, 46 actual days and 22 "good time/work time" credits.
Shortly before committing the instant offense, defendant was found guilty of misdemeanor sexual battery of a disabled person (Pen. Code, § 243.4, subd. (b)) in Colusa County, but he had not yet been sentenced on that case. Thus, his 46 actual days were served on this case.
On November 29, 2010, after absconding for three years, defendant admitting violating probation by failing to report to his probation officer and failing to report his change of address. On December 27, 2010, after denying his motion to reduce the offense to a misdemeanor, the trial court sentenced defendant to the upper term of three years in prison.
He had been arrested in Orange County on a misdemeanor charge of failure to register as a sex offender.
In addition to imposing various fines and fees and making a victim restitution order, the trial court awarded defendant 177 days of presentence custody credit, consisting of 89 days actually served plus 88 days of conduct credit. This included the 46 actual days previously credited, two days spent in the Orange County jail (apparently on a Yuba County hold), and 41 additional days served in the Yuba County jail, pending sentencing.
Defendant timely filed this appeal.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We have undertaken an examination of the record and find no arguable error which would result in a disposition more favorable to defendant. However, we have found an error in the calculation of conduct credits that resulted in defendant's receiving an unauthorized award. We will explain.
In the interests of judicial economy, we have proceeded in the absence of supplemental briefing. Any aggrieved party may invoke the remedy provided by Government Code section 68081.
The probation report states defendant was convicted of sexual battery in Colusa County on July 11, 2007, and convicted of a sex-registration offense in Orange County on July 21, 2010. (Pen. Code, §§ 243.4, subd. (b), 290.018, subd. (j).) Defendant's sexual battery conviction requires sex-offender registration. (Pen. Code, §§ 243.4, 290, subd. (c).) Defendant did not challenge the accuracy of the probation report, therefore we presume defendant is a sex-offender registrant. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)
As the probation report recommended, the trial court awarded defendant 88 days of conduct credit, based on service of 89 days of actual custody. Though not discussed on the record, it appears this calculation was made based on statutory amendments providing that certain defendants could earn conduct credit at the rate of two days for every two days served. However, defendant was not eligible for the new credit formula because he is required to register as a sex offender. (Former Pen. Code, § 4019, subds. (b)(2), (c)(2), (f) as amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50.)
Defendant is not entitled to 88 days of conduct credit under the traditional Bobb-Smith formula: Assuming a defendant has not lost credits for misconduct in jail, credits are awarded at the rate of two days for each four-day period of actual custody. Defendant served 89 actual days, or 22 four-day periods, entitling him to 44 days of conduct credit.
The traditional formula was established by this court's opinions in People v. Bobb (1989) 207 Cal.App.3d 88, 97-98 and People v. Smith (1989) 211 Cal.App.3d 523, 527.
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DISPOSITION
The judgment is modified by reducing defendant's conduct credit to 44 days, for a total presentence custody credit award of 133 days. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a certified abstract of the judgment as modified.
DUARTE, J. We concur: BLEASE, Acting P. J. NICHOLSON, J.