P. v. Yokum
Filed 9/29/10 P. v. Yokum CA3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCO CHARLES YOKUM,
Defendant and Appellant.
C064256
(Super.
Ct. Nos.
62-054105,
62‑089042)
The defendant
Marco Charles Yokum appeals his sentence following his guilty plea to possession for sale of methamphetamine
(Health & Saf. Code, § 11378)
and admission of a prior strike and to violating the terms of his
probation. His appeal is subject to the
principles of People v. Wende
(1979) 25 Cal.3d 436 (Wende) and
People v. Kelly (2006) 40 Cal.4th
106, 110. Pursuant to the latter, we
provide the following summary of the offense and the proceedings in the trial court.
On March 12, 2009, defendant was
found in a hotel room with methamphetamine, baggies, packaging material, a
digital scale, and a large amount of cash.
He was on felony probation at the time.
Defendant was charged with possession of methamphetamine for sale,
possession of methamphetamine, possession of drug paraphernalia, and being
under the influence of methamphetamine.
It was also alleged defendant had suffered a prior strike conviction in
1997. He ultimately pleaded guilty to
possession of methamphetamine for sale and admitted the prior strike conviction
and the violation of probation. In
exchange for the plea, the parties stipulated to a state prison term of 40
months.
About a month
later, defendant sought to withdraw his plea.
Trial counsel did not believe there were grounds to file such a motion
and conflict counsel was appointed.
Conflict counsel concurred that there was no basis to file a motion to
withdraw the plea and was relieved of the appointment. Defendant's original counsel was then reappointed.
In accordance
with the plea, defendant was sentenced to the lower term of 16 months on
the possession for sale, doubled pursuant to the prior strike to
32 months, and to a consecutive eight-month term on the violation of
probation. Various fines and fees were
imposed. Defendant had served
149 days of actual custody and was awarded 74 days of conduct credit
for time served under Penal Code section 4019, for a total of
223 days of presentence custody credit.
Defendant's
request for a certificate of probable
cause was denied.
Defendant
appeals. We appointed counsel to
represent him 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. (Wende,
supra, 25 Cal.3d at p.
443.) 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. Having undertaken an
examination of the entire record, we find no arguable error that would result
in a disposition more favorable to defendant.
We have,
however, found an error in the abstract of judgment that requires
correction. The abstract of judgment
reflects an apparent typographical error, that defendant was awarded
233 days of total credit under Penal Code section 4019.[1] The reporter's transcript, as well as the
actual mathematical calculations, indicate defendant was awarded 223 days
of credit. Accordingly, the abstract
must be corrected to reflect the judgment imposed. (People v.
Mesa (1975) 14 Cal.3d 466, 471.)
DISPOSITION
The trial court
is directed to prepare a corrected abstract of judgment, reflecting the award
of 223 days of presentence custody credit, and to forward a certified copy
of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
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[1] Pursuant to this court's miscellaneous order
No. 2010-002, filed March 16,
2010, we deem defendant to have raised the issue of whether
amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his
pending appeal and entitle him to additional presentence credits. The recent amendments to Penal Code
section 4019 do not operate to modify defendant's entitlement to credit,
as he had a prior serious or violent felony.
(Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats. 2009,
3d Ex. Sess., ch. 28, § 50.)
