People v. Orbea CA3

Filed 10/29/13 P. v. Orbea CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C071909

Plaintiff and Respondent, (Super. Ct. No. CM036046)

v.

MARCEL ELLIS ORBEA,

Defendant and Appellant.

Appointed counsel for defendant Marcel Ellis Orbea 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

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.

1

436.) We find an error in the calculation of custody credits, modify the order of probation, and affirm as modified.

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.)

On March 23, 2012, Diane Tai went grocery shopping and then returned to her residence, where defendant was staying because his home was in foreclosure. While retrieving groceries from the car, Tai accidently let defendant‟s cat out of the house. Defendant became enraged and began throwing groceries (including cans) at Tai, and struck her in the knee with a frozen dinner. He then threw her cell phone and house phone across the room and away from her reach.

Afraid, Tai fled from the house in her wheelchair, which she required for mobility. Defendant caught up with her outside, pushed her out of her wheelchair and onto the ground, and yelled at her. Defendant then dragged Tai inside by the hood and collar of her sweatshirt, shouting, “ „I told you to get in the house, bitch.‟ ” Once inside the house, defendant repeatedly beat Tai with a wet towel and prevented her from leaving.