Filed 4/24/18 P. v. Hill CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
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THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNIE EDWARD HILL, JR.,

Defendant and Appellant.
C085375

(Super. Ct. No. 16FE022312)



Appointed counsel for defendant Johnnie Edward Hill, Jr., has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we conclude the trial court erred in orally pronouncing defendant’s conduct credits pursuant to Penal Code section 2933.1, but that the abstract of judgment already reflects the proper amount of conduct credit days. We shall therefore modify the judgment to award defendant 33 days of conduct credit and 259 days of total credit, and affirm the judgment as modified. No correction to the abstract of judgment is necessary.
I. BACKGROUND
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.)
On July 11, 2017, defendant pleaded no contest to a single count of robbery (§ 211) and admitted a prior strike conviction (§§ 667, subd. (e)(2) & 1170.12, subd. (c)(2)). The terms of the plea agreement included dismissing the remaining allegations in the information, dismissing a trailing case with a Harvey waiver as to restitution, and a stipulated low term sentence of two years, doubled to four years for the strike prior. As the factual basis of the plea, defendant admitted that on November 28, 2016, he took the victim’s property, including his veteran’s identification card in his backpack, from the victim’s immediate presence by means of force or fear, and that when he committed the offense he had previously suffered a strike in 2005 for first degree burglary.
Defendant waived referral to probation for a probation report and agreed to immediate judgment and sentence. The court sentenced defendant to the low term of two years, doubled to four years for the strike prior. The court ordered defendant to pay the mandatory fines and fees. The court awarded defendant 226 days of actual credit and 24 days of conduct credit (§ 2933.1) for a total of 250 days presentence custody credits. Defendant timely appealed.
II. DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. 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. Defendant’s supplemental brief was untimely, but we granted him permission to file the brief.
Although difficult to discern, defendant apparently argues that insufficient evidence supports his conviction. He denies robbing the victim, and claims that the victim simply gave him his backpack when defendant asked for it.
Defendant’s argument is not cognizable on appeal. “ ‘ “By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] ‘[I]ssues which merely go to the guilt or innocence of a defendant are “removed from consideration” by entry of the plea.’ [Citation.] Thus, claims involving sufficiency of the evidence [citation] . . . have been held not cognizable on appeal following a guilty plea.” ’ ” (People v. Moore (2003) 105 Cal.App.4th 94, 99; see also § 1237.5 [“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere” except where a defendant has filed a written statement under oath with the trial court showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings and the trial court has executed and filed a certificate of probable cause for such an appeal].)
Although we reject defendant’s sufficiency of the evidence argument, after examining the record, we conclude the trial court erred in awarding defendant custody credits. At sentencing, the court orally awarded defendant 226 days of actual presentence credit and 24 days of conduct credit. Where a person is convicted of a violent felony like defendant was here (§ 667.5, subd. (c)(9)), section 2933.1 limits conduct credit to no more than 15 percent of the actual period of presentence confinement. (§ 2933.1, subd. (c).) Fifteen percent of 226 days is 33 days and not 24 days as awarded by the court.
Even though the court erred in orally awarding conduct credits, the abstract of judgment states that defendant was awarded 33 days of conduct credit and 259 days of total credit. While the oral pronouncement of judgment normally controls over an abstract of judgment that contains a discrepancy (People v. Zackery (2007) 147 Cal.App.4th 380, 385), because the abstract of judgment reflects the proper number of days of conduct credit pursuant to section 2933.1 despite the court’s error, the abstract of judgment need not be amended.
III. DISPOSITION
The judgment is modified to reflect that defendant is entitled to 33 days of conduct credit pursuant to section 2933.1, and 259 days of total presentence credit. As so modified, the judgment is affirmed.


/S/

RENNER, J.



We concur:


/S/

BUTZ, Acting P. J.


/S/

HOCH, J.