P. v. Aguilar

















Filed 11/3/10
P. v. Aguilar CA3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. ALEX NOEL AGUILAR, Defendant and Appellant.

F059631 (Super. Ct. No. F09902864) O P I N I O N

THE COURT^*

APPEAL from
a judgment of the Superior Court of Fresno
County. James R. Oppliger, Judge.

Gabriel C.
Vivas, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.



-ooOoo-

______________________

*Before Dawson, A.P.J., Hill, J., and Kane, J.

A jury
convicted appellant, Alex Noel Aguilar, of two felonies: first
degree burglary (Pen. Code, §§ 459, 460, subd. (a);^[1] count 1) and vandalism (§ 594, subd. (a);
count 2). The jury also found true an
allegation that a person other than an accomplice was present in the residence
at the time of the burglary charged in count 1 (§ 667.5, subd. (c)(21)). The court imposed the six-year upper term on
count 1, and declared that offense to be a violent felony within the meaning of
section 667.5, subdivision (c)(21). On
count 2 the court imposed, and stayed pursuant to section 654, a term of two
years. The court also ordered that
appellant pay $9,219.56 in victim restitution, pursuant to section 1202.4,
subdivision (f), and awarded appellant 233 days of presentence credit,
consisting of 203 days of actual time credit and 30 days of conduct
credit.

Appellant's appointed appellate counsel has
filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues,
and asks that this court independently review the record. (People
v. Wende (1979) 25 Cal.3d 436.)
Appellant has not responded to this court's invitation to submit
additional briefing. As we explain
below, we have determined the court erred in its award of presentence
credit. We will modify the judgment
accordingly, and otherwise affirm.^[2] >

FACTS

Appellant
and Mirna Levato (Mirna)^[3] were involved in a romantic relationship of
approximately three years' duration; it ended in 2001.^[4] Mirna subsequently married Joel Levato
(Joel). She was at home with him on
April 3, 2009, when, at approximately 2:00 p.m., she heard him yell, and saw
appellant and his brother, Israel Aguilar (Israel), in the process of â€