Filed 10/7/13 P. v. Brown CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                             C072879

                   Plaintiff and Respondent,                              (Super. Ct. No. CRF 11-457)

         v.

LERON DEANDRE BROWN,

                   Defendant and Appellant.



         Following a plea of no contest to vehicle theft, the trial court sentenced defendant
Leron Deandre Brown to two years in county jail. Appointed counsel for defendant has
filed an opening brief that sets forth the facts of the case and asks this court to review the
record and determine whether there are any arguable issues on appeal.1 (People v. Wende
(1979) 25 Cal.3d 436.) Having reviewed the record as required by Wende, we note two
errors and will affirm the judgment as modified.



1 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.

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       We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

                 FACTUAL AND PROCEDURAL BACKGROUND

       On August 29, 2011, defendant took a car belonging to Mona S. from a public
transportation parking lot. On August 31, 2011, he was seeking gas money from adults
on school grounds in Olivehurst. When a deputy sheriff responded to investigate
defendant’s conduct, defendant walked away from the car, which sat unoccupied and
idling in the road. Defendant claimed the car belonged to a friend’s girlfriend and that he
and his friend had run out of gas and were looking for gas money. The deputy sheriff
confirmed that the car had been reported as stolen. Defendant then claimed that he had
only ridden in the car and had not driven it. Defendant claimed his friend, whose real
name he did not know, had left 20 minutes earlier. A search of defendant revealed 2.6
grams of marijuana. A search of the car revealed a backpack in the passenger seat and a
bicycle in the back seat. A glass smoking pipe was found in the backpack. Defendant
claimed his friend had stolen the bicycle from a yard.

       Defendant entered a negotiated plea of no contest to vehicle theft (Veh. Code,
§ 10851, subd. (a)) in exchange for dismissal of the remaining counts, no state prison at
the outset, and release on his own recognizance pending sentencing with a waiver under
People v. Cruz (1988) 44 Cal.3d 1247, which specified that if defendant failed to appear
at future hearings, missed appointments with probation, or violated the law, the court
could sentence defendant to the maximum term.

       Defendant violated the terms of the Cruz waiver by failing to keep appointments
with probation, failing to appear at a hearing, and committing a new offense. The court
denied probation and sentenced defendant to the midterm of two years to be served in
county jail pursuant to Penal Code section 1170, subdivision (h)(5)(A).



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       Defendant appeals. The trial court granted defendant’s request for a certificate of
probable cause. (Pen. Code, § 1237.5.)

       We appointed counsel to represent defendant on appeal. Having undertaken an
examination of the entire record, we find no arguable error that would result in a
disposition more favorable to defendant.

       We note two errors. At the plea hearing in August 2012, defendant entered his
plea in exchange, inter alia, for dismissal of the remaining counts. The court took the
People’s motion to dismiss the remaining counts under submission until sentencing. At
sentencing in December 2012, the trial court failed to dismiss the remaining counts. We
will order the remaining counts—receipt of a stolen vehicle (Pen. Code, § 496d, subd.
(a)), unlawful possession of paraphernalia (Health & Saf. Code, § 11364), and possession
of marijuana (id., § 11357, subd. (b))—dismissed.2

       With respect to presentence custody credits, in response to defense appellate
counsel’s request for modification of custody credits, the court awarded 97 actual days
and 97 conduct days for a total of 194 days of presentence custody credit. The
calculation of actual days was based on the probation officer’s report. The probation
officer miscalculated the period from July 1, 2012 to July 6, 2012 as five days when it
totals six days, resulting in a miscalculation of the total actual days; the total should be 98
days rather than 97 days. Since the actual days total 98 days, defendant’s conduct days
should likewise total 98 days for a total of 196 days of presentence custody credit.




2 Although the trial court did not mention dismissal of the remaining counts at
sentencing, the minute order for judgment and sentencing does reflect dismissal of the
remaining counts.

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(People v. Hul (2013) 213 Cal.App.4th 182, 185-187.) We will modify the judgment
accordingly.3

                                      DISPOSITION

       The judgment is modified, dismissing the remaining counts and amending the
presentence custody credit to 98 actual days and 98 conduct days for a total of 196 days.
The trial court is directed to prepare an amended abstract of judgment reflecting the
amended custody credit and to forward a certified copy to the appropriate parties. As
modified, the judgment is affirmed.




                                                             BUTZ                   , J.



We concur:



             ROBIE                 , Acting P. J.



             HOCH                  , J.




3 In the interest of judicial economy, we correct these errors without having requested
supplemental briefing. A party claiming to be aggrieved by this procedure may petition
for rehearing. (Gov. Code, § 68081.)

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