Filed 4/9/15 P. v. Cervantes CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

VALENTINE CERVANTES, 

Defendant and Appellant. 

F068409 

(Super. Ct. No. F12904610) 

OPINION

THE COURT*

 APPEAL from a judgment of the Superior Court of Fresno County. Jon N. 

Kapetan and Ralph Nunez,† Judges.‡

 Deborah Prucha, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent. 

-ooOoo- 

 

*Before Gomes, Acting P.J., Poochigian, J. and Peña, J. 

†Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution. 

‡Judge Kapetan presided over defendant’s change of plea hearing. Judge Nunez 

sentenced defendant. 
2. 

PROCEDURAL AND FACTUAL SUMMARY 

 Defendant Valentine Cervantes was charged in a felony criminal complaint filed 

on June 26, 2012, with second degree robbery, a felony (Pen. Code, § 211).1 The robbery 

allegedly occurred on January 14, 2012. The complaint alleged that defendant used a 

rifle within the meaning of section 12022.5, subdivision (a). The People elected to try 

defendant, who was over 16 years old when the robbery occurred, as an adult pursuant to 

Welfare and Institutions Code section 707, subdivision (d). 

 The proceedings were continued for over nine months, with time waivers by 

defendant, until the preliminary hearing was conducted on March 27, 2013. The first 

amended criminal felony complaint was further amended to allege defendant used a gun 

pursuant to section 12022.53, subdivision (b), his birthdate was in May 1995, and the 

robbery occurred on November 15, 2011. 

 At the preliminary hearing, Officer Vincent Patlan testified he contacted Wesam 

Musa who worked at the Star Discount Store in Firebaugh to investigate a robbery. Musa 

told Patlan that one assailant was armed with a gun and the other was armed with a knife. 

The assailant with a knife was wearing a black ski mask, a black hooded sweatshirt, and 

gloves. The assailant with a gun was wearing a gray sweater with a red bandana around 

his face. The assailants ordered Musa to give them all of his money or they would shoot 

him. Musa gave them $800. The robbery was captured on video.2

 

1Unless otherwise designated, further statutory references are to the Penal Code. 

2There was confusion during the preliminary hearing concerning the date of the robbery. 

Patlan initially testified the robbery occurred on January 14, 2012. On cross-examination, Patlan 

said the robbery occurred in November of 2012. Given the fact the original complaint was filed 

in June 2012, the November 2012 date was chronologically impossible. Sergeant Salvador 

Raygoza testified at the preliminary hearing that he arrested defendant and a codefendant in 

Mendota on February 25, 2012. Raygoza explained the Firebaugh robbery occurred on 

November 15, 2011, and Patlan had made a mistake when he prepared his police report, inserting 

the wrong year for the date of the robbery. Raygoza explained the police report was generated 

on January 14, 2012. 
3. 

 An officer with the Mendota Police Department read defendant his rights pursuant 

to Miranda v. Arizona (1966) 384 U.S. 436. Defendant told Raygoza he had been read 

his rights, waived his rights, and agreed to allow Raygoza to question him about the 

robbery. Defendant admitted he participated in the Firebaugh robbery with a friend. 

Defendant admitted he held a gun while his friend held a knife during the robbery. 

 On September 5, 2013, the parties entered into a plea agreement. Defendant 

initialed and signed a felony advisement, waiver of rights, and plea form. Under the 

terms of the agreement, defendant would receive a stipulated prison sentence of nine 

years, receiving the aggravated term of five years for robbery and the midterm of four 

years for a gun enhancement pursuant to section 12022.5, subdivision (a). The allegation 

under section 12022.53, subdivision (b) would be dismissed. Defendant was advised of 

and waived his constitutional rights pursuant to Boykin/Tahl.

3 Defendant was further 

advised in the plea form of the consequences of his plea, and he agreed the police reports 

and preliminary hearing transcript formed the factual basis for his plea. 

 At the change of plea hearing, the trial court confirmed that defendant understood, 

initialed, and signed the plea form. Defendant pled no contest to the robbery allegation, 

admitted the gun use enhancement, and stipulated to a factual basis for the change of 

plea. The court granted the prosecutor’s motion to dismiss the section 12022.53, 

subdivision (b) allegation. On October 3, 2013, the trial court sentenced defendant to the 

stipulated prison term of nine years. Defendant was ordered to pay fines and fees, 

including a restitution fine of $2,520 pursuant to section 1202.4. The court granted 

 

The confusion over the date of the robbery continued when the People filed the 

information and the amended information, which both alleged the robbery occurred on 

January 14, 2012. 

3Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122. 
4. 

defendant actual custody credits of 586 days, conduct credits of 87 days, and total 

custody credits of 673 days.4 Defendant obtained a certificate of probable cause. 

 Appellate counsel has filed a brief seeking independent review of the case by this 

court pursuant to People v. Wende (1979) 25 Cal.3d 436. 

APPELLATE COURT REVIEW 

 Defendant’s appointed appellate counsel has filed an opening brief that 

summarizes the pertinent facts, raises no issues, and requests this court to review the 

record independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also 

includes the declaration of appellate counsel indicating defendant was advised he could 

file his own brief with this court. By letter on February 18, 2014, we invited defendant to 

submit additional briefing. To date, he has not done so. 

 After independent review of the record, we have concluded there are no 

reasonably arguable legal or factual issues. 

DISPOSITION 

 The case is remanded for the trial court to amend the abstract of judgment to add 

one day of actual presentence custody credit, or 587 days, and one day of conduct credit, 

or 88 days, for total custody credits of 675 days. The amended abstract of judgment shall 

be forwarded to the appropriate authorities. The judgment is affirmed. 

 

4Appellate counsel sent a letter to the trial court with a copy filed in this court on 

December 27, 2013, noting defendant was entitled to actual custody credits of 587 days and 

conduct credits of 88 days pursuant to section 2933.1. The trial court apparently never replied to 

counsel’s request for a recalculation of custody credits. By our calculation, defendant is indeed 

entitled to two extra days of custody credits. The error is clerical error that can be corrected any 

time on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 

Cal.3d 702, 705.) We will remand for the trial court to correct defendant’s custody credits.