P. v. Richard

Filed 8/22/06 P. v. Richard 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(San Joaquin)

Defendant Nicholas James Richard, Sr. pled guilty to one count of first-degree residential burglary (Pen. Code, § 459) with a stipulated four-year prison term. The court convicted defendant and sentenced him to the stipulated term. Without obtaining a certificate of probable cause, defendant appealed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief which sets forth the facts of the case and requests this court to review the record and determine whether there is any arguable issue 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 elapsed, and we received no communication from defendant.

To the extent that defendant intended to appeal any matter that requires a certificate of probable cause (Pen. Code, § 1237.5), the appeal must be dismissed because the court denied defendant's request for same. (Cf. People v. Mendez (1999) 19 Cal.4th 1084, 1088, 1099 [appellate court confronted with an appeal subject to the requirements of Penal Code section 1237.5 should dismiss the appeal rather than proceed to the merits if the defendant does not obtain a certificate of probable cause].

Nevertheless, we have undertaken an examination of the entire record and found no arguable error that would result in a disposition more favorable to defendant.^[1]

DISPOSITION

The trial court is directed to correct the abstract of judgment to specify that defendant was awarded 116 days of presentence custody credit and 58 days of conduct credit. The court also is directed to include in the abstract a statement that the credits were calculated in accordance with the parties' plea agreement. As corrected and clarified, the judgment is affirmed. The trial court is directed to serve a copy of the amended abstract of judgment on defendant and the Department of Corrections and Rehabilitation. BLEASE , Acting P. J.

We concur:

MORRISON , J.

ROBIE , J.

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^[1] There is an error in the abstract of judgment requiring correction. It recites that defendant spent 58 days in custody and was awarded 116 days of conduct credits. These numbers are transposed and should be corrected. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment judicial function; entry into abstract of judgment clerical function; any inconsistency presumed to be clerical error].) In addition, since credits were calculated in accordance with the plea agreement rather than the applicable statute (Pen. Code, § 2933.1, subd. (c), it is possible that a dispute might arise over credit calculations for determining defendant's parole release date. To eliminate this possibility, the court is directed to include in the abstract of judgment a statement that the presentence credits were calculated in accordance with the parties' plea agreement.