P. v. Melger CA3

Filed 7/2/13 P. v. Melger CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C073019

v. (Super. Ct. No. CRF122589)

THOMAS JOSEPH MELGER,

Defendant and Appellant.

Appointed counsel for defendant Thomas Joseph Melger asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will modify the judgment to award defendant 85 days of presentence custody credit and 42 days of presentence conduct credit. Finding no other arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.

1

I Because the matter was resolved by plea and defendant waived referral to the probation department, the facts are taken from the stipulated factual basis for the plea. Defendant entered a commercial establishment in January 2011 and passed a forged check. He pleaded no contest to making, passing and uttering a fictitious instrument. (Pen. Code, § 476.)1 In addition, he admitted a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)). The trial court dismissed three related counts in light of the plea and in the interest of justice; sentenced defendant to a stipulated term of three years eight months in prison (the low term of 16 months, doubled for the prior serious felony conviction, plus one year for the prior prison term); awarded 160 days of presentence custody credit and 52 days of presentence conduct credit; and ordered defendant to pay a $240 restitution fine (§ 1202.4), a $240 parole revocation fine (§ 1202.45), a $40 court operations fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373). In addition, the trial court ordered a post-sentence probation report to confirm the presentence credit and advised defendant that his attorney would be notified if the probation department determined that the credit award was too high. The probation department filed a post-sentence report indicating that defendant was not entitled to presentence credit for time spent in custody on an unrelated parole violation. The trial court issued a certificate of probable cause, but defendant’s appellate counsel advised defendant to abandon the appeal to avoid a reduction in the award of presentence credit.