People v. Smith CA3

Filed 12/24/14 P. v. Smith CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C076156

v. (Super. Ct. No. 13F03974)

DEANDRE SMITH,

Defendant and Appellant.

Appointed counsel for defendant Deandre Smith asked 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).) We find no arguable error that would result in a disposition more favorable to defendant, but we have identified an error in the award of presentence credit, and we have also identified clerical errors in the abstract of judgment.

1

We will modify the judgment, affirm the judgment as modified, and direct the trial court to prepare an amended and corrected abstract of judgment. I Because the matter was resolved by plea and defendant waived referral to the probation department, the facts are taken from the prosecutor’s statement of the factual basis for the plea. In July 2008, defendant was convicted of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) Then, on June 22, 2013, defendant and a female companion were in a car outside a café in Sacramento County. Defendant removed a gun from his waistband and the gun accidentally discharged. Defendant’s hand was injured and a bullet passed through both of the female’s legs. Defendant pleaded guilty to possession of a firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1))1 and admitted that he personally inflicted great bodily injury in the commission of the offense (§ 12022.7, subd. (a)). In exchange, the trial court dismissed an allegation that defendant committed the offense while released from custody on a primary offense. (§ 12022.1.) The trial court sentenced defendant to the low term of 16 months in prison, plus three years for the great bodily injury enhancement. It also awarded 273 days of custody credit and 40 days of conduct credit (§ 2933.1) and ordered defendant to pay a $280 restitution fine (§ 1202.4), a $280 parole revocation fine (§ 1202.45), a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373). II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of