P. v. Chavez

Filed 10/16/08 P. v. Chavez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant pled guilty to attempted murder (Pen. Code, 664/187, subd. (a)),^[1]during which he discharged a firearm ( 12022.53, subd. (c)) and unlawfully driving/taking a vehicle (Veh. Code, 10851). As part of his plea bargain, he waived his right to appeal. He was sentenced to the agreed-to term of 29 years in prison. There is no certificate of probable cause in the record before this court.

He 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 [87 S.Ct. 1396, 18 L.Ed. 2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

After concluding our independent review of the record, we affirm the judgment.

Facts

The trial court accepted as a factual basis for defendants plea a police report, which is not part of the record before this court. According to the factual statement in defendants brief, he shot at a person he apparently believed had wronged his cousin. A car at the scene which had been driven by defendant had been stolen.

Discussion

The change of plea form states that defendant served 814 days of presentence custody. It then states that that represents 407 days of section 2933 credits, however, the 407 was crossed out and replaced with 122 days and there is one amount written for total credits, which is 1221. At the taking of the plea, the prosecutor noted that the presentence custody days were listed, but she did not know if the conduct credits were enumerated pursuant to section 2933.1. The trial court responded that they were not, then said, 122. Defense counsel said, Yes. Thank you. Counsel then stated there was no legal cause why sentence should not be pronounced and declined the courts invitation to say anything about sentencing.

122 days represents 15 percent of the 814 days of actual presentence custody to which defendant is entitled under section 2933.1, subdivision (a) because he was convicted of attempted murder. Therefore, defendant was neither denied the benefit of his bargain, nor was his plea unknowing by virtue of the fact that he received only 122 days of custody credits.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.