P. v. Delacruz CA2/5 ( 2013 )

Filed 7/15/13 P. v. Delacruz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B244638
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA036995)
v.
RODRIGO DELACRUZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Leslie A.
Dunn, Judge. Judgment affirmed as modified with directions.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General and David A. Wildman, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant, Rodrigo Delacruz, pleaded guilty to second degree robbery (Pen.
Code,1 § 211) and attempted second degree robbery (§§ 664, 211) committed in
November 2000. Defendant admitted he used a firearm within the meaning of section
12022.53, subdivision (b) as to each count. On May 31, 2001, defendant was sentenced
to 17 years, 4 months in state prison. He was order to pay a $200 restitution fine
(§ 1202.4, subd. (b)), a $200 parole revocation restitution fine (§ 1202.45), and restitution
to the victims (§ 1202.4, subd. (a)(1)).
Defendant filed a post-judgment “motion to correct [the] abstract of judgment” to
reflect, in his words, “retroactive pre-sentence in-custody credits pursuant to the
California Penal Code § 4019 & § 1202.5 in effect now, not at the time of sentencing.”
On August 20, 2012, the trial court denied the motion.
We appointed counsel to represent defendant on appeal. After examination of the
record, appellate counsel has filed a brief in which no issues are raised. Instead,
appointed counsel has asked us to independently review the entire record on appeal
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v. Robbins
(2000) 528 U.S. 259, 264.) On March 5, 2013, we advised defendant he had 30 days
within which to submit by brief or letter any contentions or argument he wished us to
consider. No response has been received.
Defendant was arrested on November 28, 2000, and sentenced on May 31, 2001.
He received credit for 186 days in presentence custody and 28 days of conduct credit for
a total of 214 days. We asked the parties to brief the question whether defendant should
have received credit for 185 days in presentence custody and 27 days of conduct credit (§
2933.1, Stats. 1994, ch. 713, § 1) for a total of 212 days.
1 Further statutory references are to the Penal Code unless otherwise noted.
2
The judgment is modified to award defendant 185 days of presentence custody
credit and 27 days of conduct credit for a total of 212 days. In all other respects, the
judgment is affirmed. Upon remittitur issuance, the clerk of the superior court shall
prepare an amended abstract of judgment and deliver a copy to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORT
TURNER, P.J.
We concur:
MOSK, J.
KRIEGLER, J.
3