Filed 1/22/16 P. v. Benites 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                             C078380

                   Plaintiff and Respondent,                             (Super. Ct. No. CRF-08-2607)

         v.

ALEXANDER FRANK BENITES,

                   Defendant and Appellant.




         Appointed counsel for defendant Alexander Frank Benites has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a
disposition more favorable to defendant, we will affirm the judgment, with an instruction
to the trial court to correct the abstract of judgment.

         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.)



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       On April 9, 2008, defendant was released from prison. The next day, he reported
to his parole officer in Woodland. Defendant was required to register as a sex offender
pursuant to Penal Code section 290.1 Because he was a high-risk sex offender, he was
required to wear a global positioning system (GPS) tracking device on his ankle as a
special condition of parole and live no closer than 2,000 feet of a school or park.
(§ 3003.5, subd. (b).) The parole officer advised defendant about charging the tracking
device and that if he lost, stole, or damaged the tracking system, he could be charged with
grand or petty theft. Defendant signed the special condition, stating that he understood
the condition and directions for charging the tracking device. Parole approved of and
paid for defendant’s placement at Granada Motel where defendant met his parole officer
on April 23, 2008. The next day, defendant was required to pay for his own lodging.
Defendant was advised that in the event he became homeless, he had to advise his parole
officer. The next day, defendant became homeless and called the parole officer who
instructed defendant to go to the parole office to sign additional paperwork. He did not
comply with that instruction and removed his tracking device, leaving it on a bus. A bus
driver recovered the device but the battery charger was not found on the bus. The strap
on the device had been torn or cut. The replacement cost for the device and charger was
$1,500 and $50, respectively. Although defendant had registered on April 15, 2008, he
did not reregister as homeless after April 24, 2008. On May 6, 2008, defendant turned
himself in.

       A complaint filed May 8, 2008, charged defendant with failing to register as a sex
offender (§ 290.018) and petty theft with a prior (§ 666). It was further alleged that
defendant had a strike prior (§ 667, subds. (b)-(i)) and three prior prison terms (§ 667.5,
subd. (b)).



1 Undesignated statutory references are to the Penal Code.



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       After a preliminary hearing, an information filed January 2, 2009, charged
defendant with the same offenses and enhancements as in the complaint and added a
charge of grand theft. (§ 487.)

       More than three years later, on April 25, 2012, after the trial court struck the strike
prior (§ 1385), defendant entered a plea of no contest to failing to register, grand theft,
and petty theft, as amended to be a misdemeanor based on the change in law requiring
three prior theft-related convictions. He also admitted the three prior prison terms.2

       On May 11, 2012, the trial court imposed an aggregate state prison sentence of six
years eight months. The trial court imposed the upper term of three years for failing to
register, a consecutive one-third the midterm or eight months for grand theft, plus one
year each for the three prior prison terms. The court dismissed the misdemeanor petty
theft offense as a lesser included offense of grand theft. The court then suspended
execution of the sentence and placed defendant on probation for a term of three years.3

       A declaration filed July 30, 2012, alleged that defendant violated probation by
failing to keep probation informed of his residence, to appear for a meeting, and to
register. A bench warrant was issued for his arrest.



2 In 2008, defendant was charged with violating section 487, “grand theft when [the]
value exceeds $400.” The Legislature amended section 487, subdivision (a) to define
grand theft as involving property worth more than $950. (Stats. 2010, ch. 693, § 1.)
Defendant would be entitled to the benefit of the change in the law. (People v. Wade
(2012) 204 Cal.App.4th 1142, 1150-1151.) We conclude beyond a reasonable doubt that
defendant’s conviction for grand theft as amended is supported by sufficient evidence. In
entering his plea, defendant stipulated to the evidence adduced at the preliminary hearing
as the factual basis for his plea. The testimony at the preliminary hearing reflects that the
value of the GPS tracking device and charger was $1,550.
3 Defendant also entered a no contest plea to a misdemeanor petty theft of retail
merchandise in case No. 12-1855. The court sentenced defendant to one day in jail and a
$250 fine.


                                              3
       When defendant appeared on February 21, 2013, he faced a new charge of petty
theft with priors and enhancements (case No. 12-3053). On March 28, 2013, defendant
admitted violating probation in the current case and entered a plea of no contest to the
petty theft offense and admitted the case enhancements in the new case. The trial court
reduced the new petty theft offense to a misdemeanor pursuant to section 17, subdivision
(b) and imposed 120 days. The court reinstated defendant on probation in the current
case and imposed 120 days in jail consecutive to the new case. The court ordered
defendant to complete a one-year residential program. Once placed in a program, the
trial court ordered the jail time stayed. Defendant waived custody credits while in a
residential program.

       Probation was unable to find a residential program for someone required to
register as a sex offender. On April 11, 2013, the court released defendant on his own
recognizance pending placement and ordered him to attend five AA or NA (Alcoholics
Anonymous/Narcotics Anonymous) meetings per week and to participate in random drug
testing.

       A declaration filed May 2, 2013, alleged defendant violated probation by failing to
register, to meet with the probation officer, and to attend court.

       An addendum to the declaration filed on November 19, 2014, alleged that
defendant had been convicted on March 27, 2014, of possession of heroin with priors
(Health & Saf. Code, § 11350, subd. (a)) in Sacramento County.4 After a hearing, the
court found defendant in violation of probation.

       On January 14, 2015, the court lifted the suspension on the previously imposed
sentence of six years eight months and, in the Sacramento case, resentenced defendant to


4 Defendant appealed in Sacramento County case No. 13F03242 and the judgment was
affirmed. (People v. Benites (Jan. 28, 2015, C076381) [nonpub. opn.].)


                                              4
a consecutive one-third the midterm or eight months for the possession of heroin offense
and stayed the terms imposed for the same prior prison terms. Defendant’s total prison
sentence was seven years four months. The court also terminated misdemeanor probation
in case No. 12-3053 as unsuccessful.

       Defendant appeals. The trial court granted his request for a certificate of probable
cause. (§ 1237.5.)

       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. (People v. 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.

       We note errors in preparation of the amended abstract of judgment filed May 5,
2015. In 2012, defendant entered a no contest plea to failing to register and grand theft
and admitted three prior prison term allegations after the trial court dismissed the strike
prior pursuant to section 1385. The abstract erroneously reflects defendant was
sentenced with a strike prior (box checked at item 4). Also, the trial court confirmed the
custody credits awarded in the Sacramento case (190 actual days plus 190 conduct days
for a total of 380 days of presentence custody credit) as well as the restitution fines but
the credits and fines do not appear on the amended abstract.5 We will order the abstract
corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)




5 Defense appellate counsel wrote the trial judge, requesting correction of the abstract to
delete reference to the strike prior and to reflect the 380 days. A corrected abstract or
response from the trial court is not included in the record on appeal.


                                              5
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.

                                      DISPOSITION

       The trial court is ordered to prepare a corrected abstract of judgment reflecting
defendant’s full name as used herein, deleting reference to the strike prior, and reflecting
the custody credits and fines in the Sacramento case, and to forward a certified copy of
the corrected abstract to the Department of Corrections and Rehabilitation. The judgment
is affirmed.




                                                        BUTZ                  , Acting P. J.



We concur:



      DUARTE                , J.



      HOCH                  , J.




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