P. v. Escalera

Filed 3/24/06 P. v. Escalera CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Miguel Angel Escalera, pled no contest to possession of cocaine for sale (Health & Saf. Code, § 11351) and admitted an arming enhancement (Pen. Code, § 12022, subd. (c)) and allegations that he had a prior strike within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On July 21, 2005, the court sentenced Escalera to an aggregate 10-year term, the middle term of three years on his possession offense, doubled to six years because of Escalera's prior strike conviction, and a four-year arming enhancement.

Escalera'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.) Escalera has not responded to this court's invitation to submit additional briefing. However, our review of the record disclosed that the trial court erred in its award of presentence custody credit. On November 18, 2004, Escalera was arrested on a felony warrant from West Covina. According to defense counsel's representation at Escalera's sentencing hearing, which was unrebutted by the prosecution, Escalera was also arrested on the underlying charges. Further, although the charges underlying the West Covina warrant were ultimately dropped, at the sentencing hearing on the instant charges, the court awarded Escalera presentence credit only from January 6, 2005, the date the Kern County District Attorney filed the complaint in the instant case, until July 21, 2005, the date he was sentenced in the instant case.^[1] Further since Escalera was in custody in the instant case since his arrest on November 18, 2004, and he did not receive any credit against the West Covina case, in the instant case he is entitled to an additional 49 days of actual custody credit for the period November 18, 2004, through January 5, 2005, and 24 days of conduct credit. In view of the foregoing, we will increase Escalera's award of presentence custody credit to 368 days calculated as follows: 246 days of actual custody^[2] plus 122 days of conduct credit equals 368 days.^[3]

Moreover, the court did not impose the mandatory $50 fine required by Health and Safety Code section 11372.5 for drug offenses, a $50 penalty assessment pursuant to Penal Code section 1464, a $35 penalty assessment pursuant to Government Code section 76000, subdivision (a), and a 20 percent surcharge of $10 pursuant to Penal Code section 1465.7.

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

The judgment is modified to award Escalera at total of 368 days of presentence custody credit as calculated above and to include the above noted fine, penalty assessments and surcharge. The trial court is directed to prepare an amended abstract of judgment that incorporates these modifications and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] For this time period the court awarded a total of 295 days presentence custody credit calculated as follows: 197 days actual custody plus 98 days conduct credit equals 295 days. Additionally, the court denied Escalera's request for presentence credit for the period of November 18, 2004, through January 5, 2005.

^[2] 197 days + 49 days = 246 days.

^[3] 246 days/4 =61.5 days; 61 days x 2 = 122 days.