P. v. Savala
Filed 9/29/10 P. v.
Savala 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opinion has not been certified for publication or ordered published for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
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
EDDIE ALBERT SAVALA,
Defendant and Appellant.
C064934
(Super.
Ct. Nos. 07-3398, 08-6533 & 09-4765)
This appeal is
brought pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende).
On February 18, 2010, as part of a plea agreement that resolved two felony
cases, a misdemeanor case, and a misdemeanor probation violation, defendant
Eddie Albert Savala pleaded no contest to petty theft with a prior, battery, and possession of
methamphetamine, and admitted a prior strike conviction. (Pen. Code, §§ 242, 666, 667, subds.
(b)-(i); Health & Saf. Code, § 11377, subd. (a).) In exchange, other charges were dismissed and
defendant was to receive a stipulated sentence of seven years four months in state prison.
The stipulated
factual basis for the felony charges and strike shows that on October 9, 2009, a peace officer searched
defendant and found methamphetamine in his possession; on October 15, 2008, after a prior theft
conviction, defendant took property from another person without permission; and
in 1980, defendant was convicted of residential
burglary.
On March 18, 2010, defendant expressed
discontent with his plea and with his trial counsel. The trial court appointed new counsel to
consider a motion to withdraw the
plea. The trial court also heard and
denied a Marsden motion, rejecting
defendant's claim that his existing trial counsel had not provided proper legal
representation. (See
118.)
It appears that
on April 1, 2010, it was
determined that no motion to withdraw the plea would be made.
On April 15, 2010, the trial court
sentenced defendant to state prison for seven years four months, in conformity
with the plea agreement.
On April 30, 2010, the trial court
awarded defendant 204 actual days of presentence custody credit, and 102
conduct days, for a total of 306 days of custody credit.
Defendant timely
filed this appeal. Defendant did not
request a certificate of probable cause.
We appointed
counsel to represent defendant 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 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 have
elapsed, and we have received no communication from defendant.
Pursuant to this
court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue
of whether recent amendments to Penal Code section 4019 apply retroactively to
his pending appeal and entitle him to additional conduct credits. (Stats. 2009, 3d Ex. Sess., ch. 28,
§ 50.) However, because defendant has a first degree burglary
conviction, he is disqualified from the new formula. (Pen. Code, §§ 1192.7, subd. (c)(18),
4019, subds. (b)(2) & (c)(2).)
Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
However, the
abstract of judgment, prepared before the trial court ascertained defendant's
custody credits, does not reflect those credits. The prison authorities must have a complete
and accurate abstract of judgment. (See
26 Cal.4th 181, 185.)
Accordingly, we will direct the trial court to prepare a corrected
abstract.
DISPOSITION
The trial court
is directed to prepare and forward to the Department of Corrections and
Rehabilitation a corrected abstract of judgment that includes defendant's
presentence custody credits totaling 306 days as set forth above. The judgment is affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
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