People v. Gates CA3

Filed 8/29/14 P. v. Gates CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C074510

v. (Super. Ct. No. 12F06398)

JOHNNY GATES,

Defendant and Appellant.

Appointed counsel for defendant Johnny Gates asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief explaining the records of the Department of Corrections and Rehabilitation fail to reflect the plea bargain provided that “credits from [case No. 11F03470 were to run] concurrent and given on the new [current] case.” (Italics added.) We conclude the record does not support defendant’s claim the plea bargain provided he was to receive custody credits

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in the current case for time served in a prior case. After reviewing the record, we affirm the judgment. On October 18, 2009, defendant entered the victim’s home through a broken dining room window and stole items from the bedroom dresser. Defendant’s fingerprint was found on the dresser. Defendant entered a no contest plea to first degree burglary (Pen. Code, § 459) in exchange for a four-year state prison term to run concurrently to the term defendant was serving in case No. 11F03470. The court sentenced defendant accordingly and awarded a total of 53 days of presentence custody credit towards the current case. Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.) 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. (Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief addressing the issue of credits that should have been given as part of the plea bargain. He states the records of the Department of Corrections and Rehabilitation fail to reflect the plea bargain provided that “credits from [case No. 11F03470 were to run] concurrent and given on the new [current] case.” (Italics added.) The plea bargain provided that the four-year midterm sentence in the current case was to run concurrently to the sentence defendant was serving in case No. 11F03470. When defendant entered his plea, the trial court commented that “[w]e need to look into the other case and this case a little bit further to make sure we have the credits fully understood.” Defendant waived referral to the probation department for a report.