People v. Wilkes CA1/2

Filed 10/30/13 P. v. Wilkes CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A136901 v. DAVID G. WILKES, (Contra Costa County Super. Ct. No. 051212737) Defendant and Appellant.

David G. Wilkes appeals from a conviction of resisting an executive officer, entered upon his plea of no contest. At sentencing, appellant was released because his credits for presentence time served exceeded the two-year sentence imposed. His sole contention is that the trial court erred in failing to award the credits that exceeded the two year sentence against his parole period. He asks this court to correct the asserted error and award the credits, which would decrease his three-year parole term by two months. We conclude there is no relief we can grant, and affirm the judgment. STATEMENT OF THE CASE1 Appellant was charged by information filed on August 8, 2012, with one count of resisting an executive officer (Pen. Code, § 69)2 and one count of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)). It was alleged that appellant had

1 As the facts underlying appellant’s conviction are of no relevance to the single issue on appeal, no purpose would be served by reciting them here. 2 All further statutory references will be to the Penal Code unless otherwise specified.

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suffered two prior strike convictions (§§ 667, subds. (b)–(i), 1170.12) and served three prior separate prison sentences (§667.5, subd. (b)), and that he was ineligible for probation due to his criminal history (§ 1203, subd. (e)(4)). Appellant was arraigned on August 13 and entered a plea of not guilty. On September 19, pursuant to a plea agreement, appellant entered a plea of no contest to the charge of resisting an executive officer and the other charge and enhancement allegations were dismissed. Appellant was sentenced to the midterm of two years in prison. He was awarded a total of 790 presentence custody credits, reflecting 395 days of actual custody and 395 days of conduct credit. As the presentence credits exceeded the two year sentence, appellant was released on three years parole; the court’s minutes and the abstract of judgment indicate “paper commitment.” On October 12, 2012, this court denied a petition for writ of error coram nobis filed by appellant in pro per, but directed the clerk to file the in pro per notice of appeal attached to the petition in the Contra Costa Superior Court.3 On October 23, appellant, in pro per, filed a request for a certificate of probable cause in the trial court. On May 18, 2013, appellant’s attorney served by mail an ex parte motion seeking an order awarding 60 of appellant’s presentence custody credits toward his parole term, an amended abstract of judgment reflecting this adjustment, with service on the California Department of Corrections and Rehabilitation Parole Division, and preparation of a supplemental clerk’s transcript to be filed in the present case. This motion was filed by the trial court on May 29 and denied the same day. Appellant’s request for a certificate of probable cause was denied by order filed on May 30, 2013.