P v. Carrillo

P v. Carrillo

Filed 8/12/08 P v. Carrillo CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. FRED CARRILLO, Defendant and Appellant.

F054439 (Super. Ct. No. PCF187403) O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Glade F. Roper, Judge.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

On July 18, 2007, at 5:30 p.m., Porterville police officers assisted a state parole agent in conducting a parole search at the home of appellant, Fred Carrillo. During a search of the premises, one of the officers discovered a total of 19 marijuana plants in two gardens in the backyard. Inside the residence, the officers found a small bindle containing .5 grams of black, tar heroin, a white plastic bag and several baggies containing a total of over six pounds of marijuana, a triple beam scale, a small digital scale, and a .22 caliber rifle with its stock cut off.

On July 20, 2007, the district attorney filed a complaint charging Carrillo with one count each of possession of marijuana for sale (count 1/Health & Saf. Code, 11359), cultivation of marijuana (count 2/Health & Saf. Code, 11358), possession of heroin (count 3/Health & Saf. Code, 11350, subd. (a)), and possession of a firearm by a felon (count 4/Pen. Code, 12021, subd. (a)(1)). Counts 1 to 3 also alleged an arming enhancement (Pen. Code, 12022, subd. (a)(1)) and all counts alleged a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).

On September 25, 2007, Carrillo pled no contest to cultivation of marijuana and possession of heroin and admitted the prior prison term enhancement. In exchange for his plea, the remaining counts and arming enhancement were dismissed and Carrillo was promised a stipulated sentence of three years, the middle term of two years on his cultivation of marijuana conviction, a concurrent two-year term on his possession of heroin offense, and a one-year prior prison term enhancement.

On October 12, 2007, Carrillo filed a motion to withdraw plea alleging he did not fully understand the consequences of his plea, he was under undue stress and fear when he entered it, and he did not have enough time to think about his decision to enter a plea.

At a hearing on October 30, 2007, the court denied the motion to withdraw plea. The court then sentenced Carrillo to the stipulated term of three years. The court also awarded Carrillo 156 days of presentence custody credit, 104 days of actual custody credit, and 52 days of conduct credit.

Carrillos 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.) Carrillo has not responded to this courts invitation to submit additional briefing. However, our review of the record disclosed that the trial court erred in its award of presentence custody credit. Carrillo was in custody a total of 105 days from the date of his arrest on July 18, 2007, through the date he was sentenced on October 30, 2007. Thus, he was entitled to 105 days of presentence actual custody credit and 52 days of presentence conduct credit for a total of 157 days of presentence custody credit.

Following independent review of the record, we find that, with the exception of the credit issue discussed above, no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is modified to award Carrillo 157 days of presentence custody credit as calculated above. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

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^*Before Cornell, Acting P.J., Gomes, J., and Dawson, J.