P. v. King























Filed 12/31/12 P.
v. King CA6

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. ROBERT WALTER KING, Defendant and Appellant.

H038501 (Santa Clara County Super. Ct. No. C1197317)

name=SearchTerm>Pursuant to a negotiated disposition, Robert King (defendant)
pleaded no contest to one count of grand theft person
(Pen. Code, § 487, subd. (c)), and one count of battery (Pen. Code, § 242, 243,
subd. (a)). Defendant admitted that he
had a prior strike conviction (robbery) within the meaning of Penal Code
sections 667, subdivisions (b)-(i) and 1170.12.
In exchange for his no contest pleas defendant was promised a four-year
prison sentence.

On September 13, 2011, the court sentenced defendant to four years in href="http://www.mcmillanlaw.com/">state prison consisting of the midterm of
two years on the grand theft count doubled because of the prior strike, plus a
concurrent 60-day jail term for the battery conviction. Defendant filed a timely href="http://www.fearnotlaw.com/">notice of appeal.

Defendant's appointed counsel has
filed an opening brief in which no issues are raised and asks this court for an
independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436 (Wende)
and Anders v. California (1967) 386
U.S. 738.

On
August 30,
2012, we notified defendant of his href="http://www.fearnotlaw.com/">right to submit written argument on his
own behalf within 30 days. That time has
passed and we have not received a response from defendant.

Pursuant
to Wende, supra,
25 Cal.3d 436, we have reviewed the entire record and have concluded there are
no arguable issues on appeal. Pursuant
to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief
description of the facts and procedural history of the case, the crimes of
which the defendant was convicted, and the punishment imposed." (Id.
at p. 110.)

The
facts underlying defendant's convictions are unknown.

Proceedings Below

Defendant
was charged by felony complaint with one count of second degree robbery, which
was alleged to have occurred on January 13, 2011. (Pen. Code, §§ 211, 212.5.) The complaint contained an allegation that
defendant had been convicted of a serious/violent felony within the meaning of
Penal Code sections 667, subdivision (a) and 1192.7, which was also a strike
prior within the meaning of Penal Code, sections 667, subdivisions (b)-(i) and
1170.12.

name="SDU_2">Thereafter,
in open court the District Attorney moved to amend the complaint to add one
count of grand theft person (Pen. Code, § 487, subd. (c)), and one count of
battery (Pen. Code, § 242, 243, subd. (a)).
As part of the plea bargain, the District Attorney moved to dismiss the
robbery count and the prior serious felony conviction allegation.

Before
entering his plea, defendant was advised of and waived his right to a
preliminary examination and his constitutional href="http://www.mcmillanlaw.com/">rights to a jury trial, to present a defense, to confront witnesses and his right against
self-incrimination. Further, he was
advised of the consequences of his plea, including immigration consequences,
the maximum possible sentence in his case and the effect of his prior strike
conviction.

As
noted, the court sentenced defendant pursuant to the terms of his plea
bargain. The court imposed various fines
and fees and awarded defendant 366 days of custody credits (244 actual days and
122 days conduct credit).

After
defendant was sentenced, he filed an ex parte motion to correct his presentence
custody credits. In the motion,
defendant argued that he was entitled to enhanced credits under an amendment to
Penal Code section 4019. It appears that
defendant was arguing that he was "retroactively" entitled to the
enhanced credits provided by the January 2010 amendment to Penal Code section
4019, even though he committed his crime in January 2011 and was in custody
after that date.href="#_ftn1" name="_ftnref1" title="">[1] The court denied defendant's
motion. The court explained that
effective September 28, 2010, the Legislature amended Penal Code section 2933, subdivision (e)
to provide that a defendant sentenced to state prison "shall have one day
deducted from his or her period of confinement for every day he or she served
in a county jail."href="#_ftn2" name="_ftnref2" title="">[2] However, because defendant
had a prior conviction for a serious felony, and he committed his crime in
January 2011, the September 2010 amendment to Penal Code section 4019 applied;href="#_ftn3" name="_ftnref3" title="">[3] and that amendment returned "the credit accrual rate to that
which existed before the previous amendment of January 25, 2010." That is conduct
credits accrued at the rate of two days for every four days in actual custody;
thus defendant was entitled to 122 days of conduct credit, which, as noted, is
the number of days of conduct credit defendant was awarded.

Upon
our independent review of the record, including the denial of defendant's
motion for enhanced conduct credits, we conclude there are no meritorious
issues to be argued, or that require further briefing on appeal. The sentence imposed was consistent with the
plea bargain. The restitution fine and
fees and assessments imposed were supported by the law and facts. Defendant's conduct credit award was
supported by the law in effect when he committed his crimes. At all times appellant was represented by
competent counsel.

>Disposition

The
judgment is affirmed.









______________________________

ELIA,
Acting P. J.



WE CONCUR:







_______________________________

BAMATTRE-MANOUKIAN, J.







_______________________________

MÁRQUEZ, J.