P. v. Lockette

File 4/18/06 P. v. Lockette CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yolo)

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In June 2000, defendant Lydale Rodney Lockette pleaded no contest to lewd and lascivious acts with a child under age 14. (Pen. Code, § 288, subd. (a).)^[1] Imposition of sentence was suspended and defendant was placed on probation on conditions including a period of incarceration.

In February 2004 and April 2004, defendant admitted violations of his probation. He was sentenced to state prison for eight years. Execution of sentence was suspended and defendant was reinstated on probation.

In April 2005, defendant admitted a third probation violation. Execution of the prison sentence was ordered. Defendant was awarded 273 days of custody credit and 40 days of conduct credit and ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 restitution fine suspended unless parole is revoked (§ 1202.45).

Defendant appeals.

We appointed counsel to represent defendant on appeal. 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 (1979) 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.

Our review of the record reveals an error in the calculation of presentence credits. Defendant was in local custody from April 12, 2005, to June 13, 2005. There are 63 days between and including these dates, not 62 days as calculated by appellate counsel and the probation department. We shall modify the judgment to award defendant 274 days of actual custody credit.

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to award defendant 274 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare a second amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

BUTZ , J.

We concur:

SIMS , Acting P. J.

MORRISON , J.

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^[1] Undesignated statutory references are to the Penal Code.