P. v. Eckes



















Filed 5/10/13 P. v. Eckes CA3

Received for
posting 5/15/13









NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.









IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----






>

THE PEOPLE, Plaintiff and Respondent, v. DANIEL AARON ECKES, Defendant and Appellant.

C070957 (Super. Ct. No. CRF101608)

This case comes to us pursuant to href="http://www.mcmillanlaw.com/">>People v. Wende
(1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by >Wende, we affirm the judgment.

We provide the following brief
description of the facts and procedural history of the case. (See People v.
Kelly (2006) 40 Cal.4th 106, 110, 124.)

PROCEDURAL
BACKGROUND

Defendant was charged with attempted
murder (
ADDIN BA xc <@st> xl 47 s CTQHXB000002 xpl 1 l "Pen. Code, §§ 664, subd. (a), 187, subd. (a) --" Pen. Code, §§ 664, subd. (a), 187,
subd. (a) -- count 1),href="#_ftn1" name="_ftnref1" title="">[1] attempted href="http://www.mcmillanlaw.com/">second
degree robbery ( ADDIN BA xc <@osdv> xl 14 s
CTQHXB000007 xpl 1 l "§§ 664, 211 --"
§§ 664, 211 -- count 2), and
conspiracy to commit robbery ( ADDIN BA xc <@osdv> xl 28 s
CTQHXB000008 xpl 1 l "§§ 182, subd. (a)(1),
211 --" §§ 182, subd. (a)(1), 211 --
count 3). Attached to each count
were allegations of firearm use and infliction of great bodily injury.

Defendant entered into the following
plea bargain: In exchange for a maximum
prison term of 22 years in state prison and the dismissal of counts 1
and 2, he pleaded guilty to conspiracy to commit robbery and admitted
allegations of personal discharge of a firearm ( ADDIN BA xc <@osdv> xl 21 s
CTQHXB000009 xpl 1 l "§ 12022.53, subd. (c)"
§ 12022.53, subd. (c)) and
personal infliction of great bodily injury in the commission of the crime ( ADDIN BA xc <@st> xl 31 s
CTQHXB000003 xpl 1 l "Pen. Code, § 12022.7, subd.
(a)" § 12022.7, subd. (a)).href="#_ftn2" name="_ftnref2" title="">[2]

At sentencing, the court denied
defendant’s request for probation, concluding that his was not an unusual case
such that justice would be served by a grant of probation. The court then imposed the 22-year term,
consisting of “the middle base term of two years” for the conspiracy plus 20 years
for the firearm use. The court determined
defendant was entitled to 824 days of presentence custody credit
(717 actual days’ credit, plus 107 conduct days’ credit pursuant to ADDIN
BA xc <@osdv> xl 8 s CTQHXB000010 xpl 1 l "§ 2933.1" § 2933.1). The court
imposed an agreed-upon $1,275 in victim restitution and restitution fines of
$240 in accordance with ADDIN BA xc <@osdv> xl 27 s
CTQHXB000011 l "sections 1202.4 and 1202.45"
sections 1202.4, subdivision (b)
and 1202.45.

FACTUAL
BASIS FOR THE PLEA

On March 26, 2010, defendant and his codefendants planned to
rob the owner of the motel in which they were staying. When the owner drove to his residence, they
followed him. Armed with a handgun,
defendant got out of the vehicle, ran up to the victim, and demanded
money. Defendant fired a shot that
passed through the victim’s wrist and lodged in a bag of quarters the victim
was holding in front of his chest. The
bullet wound caused the victim great bodily href="http://www.sandiegohealthdirectory.com/">injury.

DISCUSSION

We appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests that this
court review the record and determine whether it reflects any arguable issues
on appeal. ( ADDIN BA xc <@$cs> xl 27 s
CTQHXB000001 xhfl Rep xpl 1 Wende, supra,
25 Cal.3d 436.) Defendant was
advised by counsel 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 reviewed the record in its
entirety and found the following errors.
Defendant was sentenced for conspiracy to commit second degree
robbery. Conspiracy is punishable in the
same manner as the target offense ( ADDIN BA xc <@osdv> xl 19 s
CTQHXB000012 xpl 1 l "§ 182, subd. (a)(6)"
§ 182, subd. (a) foll. par. (6)), which
in this case is robbery. Second degree
robbery is punishable by two, three, or five years. The court stated it was imposing the “>middle base term of two years” and the
abstract of judgment repeats the error.
Since the plea bargain was clearly for a two-year base term, the court’s
records should be corrected to reflect imposition of the low term of two years as the base term.

The abstract of judgment also
indicates the source of defendant’s conduct credit was ADDIN
BA xc <@osdv> xl 12 s CTQHXB000013 l "section 4019" section 4019. The
source should be ADDIN BA xc <@$osdv> xl 14 s
CTQHXB000010 section 2933.1, which limits
defendant’s conduct credits to 15 percent of actual credits when, as
here, a defendant is convicted of a violent felony. (See ADDIN
BA xc <@osdv> xl 22 s CTQHXB000014 xpl 1 l "§ 667.5, subd. (c)(22)" § 667.5, subd. (c)(22) [“Any
violation of ADDIN BA xc <@osdv> xl 16 s
CTQHXB000015 xpl 2 l "Section 12022.53"
Section 12022.53”].)

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a
corrected abstract of judgment reflecting imposition of the low term of two
years as the base term for defendant’s conviction of conspiracy to commit
second degree robbery and citing section 2933.1 as the source of defendant’s
credits. The court is further directed
to forward a certified copy of the corrected abstract of judgment to
the Department
of Corrections and Rehabilitation.







MURRAY , J.







We concur:







BUTZ , Acting P. J.







MAURO , J.