P. v. McGill
Filed 4/25/13 P. v. McGill CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff
and Respondent,
v.
THOMAS EDWARD McGILL,
Defendant
and Appellant.
E057102
(Super.Ct.No.
RIF127778)
OPINION
APPEAL
from the Superior Court
of
County. David A. Gunn,
Judge. Affirmed.
John
L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
On September 13, 2006, an information charged defendant and
appellant Thomas Edward McGill with possession of a firearm having been
previously convicted of a felony (Pen. Code, § 12021, subd. (a)(1), count 1);
of an assault weapon (§ 12280, subd. (b), count 2);
(b)(1), count 3); and actively participating in a
(a), count 4). The information also
charged that counts 1, 2, and 3 had been committed for the benefit of a street
gang. (§ 186.22, subd. (b).) Moreover, the information alleged two prior
offenses (§ 667.5, subd. (b)), as well as one strike prior (§§ 667, subds.
(c), (e)(1), 1170.12, subd. (c)(1)).
On
May 7, 2009, defendant
entered a guilty plea as to counts 1, 3, and 4, and admitted the gang
allegations and the priors. The trial
court indicated that, if defendant returned to court for sentencing, it would
strike his strike prior and sentence him to a term of nine years in state
prison, accruing 50 percent credits, and avoiding the maximum term of 15 years
eight months in state prison, during which he would accrue credit at 85
percent.
At
the sentencing hearing on February 19,
2010, the court reiterated that it had struck the strike prior and
imposed a nine-year state prison sentence.
Defendant requested that the court
calculate his credits under the “new law [that] had kicked in as far as January
25th . . . .†The trial court calculated
his credits as 341 days actual time, with 170 custody credit days, under
section 4019, for a total of 511 days.
The trial court stated that it did not believe the new law applied
retroactively. It also noted: “If it does, I am sure they will recalculate
it in his favor, that would be my opinion.â€
On
August 23, 2012, defendant
filed an ex parte motion to correct
his presentence credits, based on the formula of two days credit for each two
days in custody. The trial court denied
the ex parte motion. The minute order
stated that the trial court denied the motion because “defendant is not
entitled to presentence custody credits due to strike prior.â€
On
September 10, 2012,
defendant filed a timely notice of appeal.
The notice of appeal was amended on September 20, 2012.
STATEMENT
OF FACTS
The
probation officer’s report stated that officers contacted defendant at a
residence on Santa Rosa Way
in Riverside. Defendant told the officers that “when he
sleeps over,†he stays in his son’s bedroom.
During a search of that bedroom, officers located a revolver in the top
dresser drawer, as well as an “SKS style assault rifle†under the bed. Defendant also informed the officers that
there was a handgun in the closet.
Defendant
stated that he lives on El Sol Way
in Riverside, and only stays at the
residence on Santa Rosa Way
because that is where his son and girlfriend live. He also stated that his parole agent has
contacted him at the Santa Rosa Way
residence, and has performed “house checks†at that address.
The
probation report also noted defendant’s prior felony convictions.
ANALYSIS
After
defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief
under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v.
California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues, and requesting this court
undertake a review of the entire record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The original felony complaint was filed on January 4, 2006.
