P. v. Melger
Filed 7/2/13 P. v. Melger 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS JOSEPH MELGER,
Defendant and Appellant.
C073019
(Super. Ct. No.
CRF122589)
Appointed counsel for defendant Thomas Joseph Melger asked this court
to review the record to determine whether there are any
Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will
modify the judgment to award defendant 85 days of presentence custody credit
and 42 days of presentence conduct credit.
Finding no other arguable error that would result in a disposition more
favorable to defendant, we will affirm the judgment as modified.
I
Because the matter was resolved by
plea and defendant waived referral to the probation department, the facts are
taken from the stipulated factual basis for the plea. Defendant entered a commercial establishment
in January 2011 and passed a forged check.
He pleaded no contest to making, passing and uttering a fictitious
instrument. (Pen. Code, § 476.)
he admitted a prior serious felony conviction (§§ 667, subds. (b)-(i),
1170.12) and a prior prison term (§ 667.5, subd. (b)).
The trial court dismissed three
related counts in light of the plea and in the interest of justice; sentenced
defendant to a stipulated term of three years eight months in prison (the low
term of 16 months, doubled for the prior serious felony conviction, plus one
year for the prior prison term); awarded 160 days of presentence
conduct credit; and ordered defendant to pay a $240 restitution fine
(§ 1202.4), a $240 parole revocation fine (§ 1202.45), a $40 court
operations fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities
assessment (Gov. Code, § 70373). In
addition, the trial court ordered a post-sentence probation report to confirm
the presentence credit and advised defendant that his attorney would be
notified if the probation department determined that the credit award was too
high.
The probation department filed a
post-sentence report indicating that defendant was not entitled to presentence
credit for time spent in custody on an unrelated parole violation. The trial court issued a certificate of
probable cause, but defendant’s appellate counsel advised defendant to abandon
the appeal to avoid a reduction in the award of presentence credit.
II
Appointed counsel filed an opening
brief setting forth the facts of the case and asking this court to review the
record and determine whether there are any arguable issues on appeal. (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 the opening brief.
Defendant filed a
the appellate record to include reporter’s transcripts for various oral
proceedings between June and November 2012.
The clerk’s minutes for those dates suggest that the proceedings
involved continuances and an arraignment on an amended complaint. There is no indication that any of the oral
proceedings should be part of the record on appeal. (Cal. Rules of Court, rules 8.320(c),
8.340(b).) Defendant simply says that he
cannot prove his case until the materials are added to the record. Although a reviewing court may order
augmentation of the record on motion of a party (Cal. Rules of Court, rule
8.340(c)), the record does not establish good cause for the requested
augmentation.
Defendant’s supplemental brief also
includes citations to various constitutional provisions, statutes, and
secondary authorities. The citations are
not accompanied by a claim of error or analysis.
Nonetheless, we examined the entire
record. Our review discloses that, as
described in the post-sentence probation report, defendant is only entitled to
85 days of presentence custody credit and only 42 days of presentence conduct
credit. We will modify the judgment to
reflect the proper credit award.
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 85 days of presentence custody credit and 42 days of presentence conduct
credit. The judgment is affirmed as
modified. The trial court is directed to
prepare an amended abstract of judgment reflecting the judgment as modified and
to forward a certified copy of the amended abstract of judgment to the
Rehabilitation.
MAURO , Acting P. J.
We concur:
MURRAY , J.
DUARTE , J.
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Undesignated statutory references are to the Penal Code.
