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Filed 10/7/15 P. v. Golden CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DARREL GOLDEN,

Defendant and Appellant. C077539

(Super. Ct. No. SF124912A)

FACTS

Defendant Darrel Golden was a fourth grade teacher at Anthony Traina School.

On November 28, 2012, Augustin Melchor, the school’s maintenance supervisor, was

working in defendant’s classroom when he saw defendant grab the buttocks of one of his

female students. Defendant squeezed her there for about eight to 10 seconds.

A. B. wa s born in May 2003. Defendant was her fourth grade teacher and would

tutor her after school. During the tutoring sessions, defendant would place his hand on

her buttocks, underneath her pants but on top of her underwear. Once he put her hand on2

“his pri vate spot.” During the incident seen by Melchor, defendant touched A. B. on her

“private spot in the front” and underneath her underwear. Defendant told A. B. and other

girls that he loved them and would marry them.

Once, A. B. saw defendant touch her friend O. V.; O. V.’s pants were unzipped

and defendant was touching her “private spot.” O. V. was born in July 2003. Defendant

taught her during the first half of the school year. He would touch her under her clothes

and on her “front private parts” wi th his hand. It took place in the classroom during and

after class. He also touched her buttocks during class and after lunch, but not after

school. Defendant told her not to tell anyone or she would get into trouble.

I. M. was born in February 2002 and defendant was her fourth grade teacher.

During class, he patted her on the buttocks a lot and would call her “babe,” a nickname

he used for all the girls. She told him to stop after a month, but defendant started again

after two months. She saw defendant touch other children in the class.

Defendant pled guilty to four counts of lewd act s on a child under the age of 14

. The trial court sentenced defendant to a stipulated term of 14 years in state prison,

imposed various fines and fees, and awarded 272 days of presentence credit s (236 actual

and 36 conduct).

Defendant appeals. The trial court granted his request for a certificate of probable

cause.

DISCUSSION

We appointed counsel to represent defendant on appeal. 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. ( People v. Wende (1979)

25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental

brief within 30 days of the date of filing of the opening brief.3

Defendant filed a supplemental brief. He first contends that his retained trial

counsel had agreed to represent him on appeal, but counsel has not responded to his

inquiri es regarding the appeal, essentially abandoning him after sentencing. 1 He also

claims that while he was incarcerated at county jail, trial counsel told him there might be

a conflict of interest, as the families of the complaining witnesses had , in prepara tion for

a civil suit, retained attorneys that his trial counsel had used. He further claims that

counsel was on vacation each time defendant’s wife called him, and that he and counsel

would go over the same information every time they met. Defendant als o alleges counsel

kept having defendant’s case put off while counsel treated other cases as being more

important than his

. By the time of the plea, defendant lost all confidence in his counsel

and did not know what to do.

Construing these claims as all egations of ineffective assistance of counsel, we find

no support for them in the record. Since defendant’s ineffective assistance claims rely on

matters outside the record, his claim is better decided in a habeas corpus proceeding than

on appeal. ( Peopl e v. Michaels (2002) 28 Cal.4th 486, 526.) We therefore decline to

reach the merits of his claims.

Defendant also claims he was pressured to enter the no contest plea by the

prosecutor’s repeated reference to the multiple life terms he potentially faced and a

comment by a local newspaper that a deal was going to be made in his case. Once again,

this relies on matters outside the record, so we decline to address them.

Finally, defendant contends he had been promised that he would receive “2 for 1

credi t served for presentencing” rather than the “1 for 1” he got. He additionally claims

that he was not told that his case was violent and that he was not a violent person.

1 Defendant is represented by appointed counsel on appeal.4

Penal Code 2 s ection 2933, subdivision (a) limits conduct credits to 15 percent for

defendants convicted of a felony listed in section 667.5, subdivision (c). Section 667.5,

subdivision (c) lists the violent felonies, which include violations of section 288,

subdivision (a). Defendant’s plea agreement states he would receive present ence conduct

credits equal to 15 percent of his presentence incarceration. California law does not

allow for two days of presentence credit for every day served, and there is no evidence

that defendant was promised any additional actual or conduct credit s other than what he

was entitled to. His claim is therefor e without merit.

There is an error in the calculation of conduct credits. The trial court awarded 36

days of conduct credits, which it calculated as 15 percent of defendant’s 236 days of

presente nce custody. In calculating conduct credit s , there is no rounding up. (See People

v. Ramos (1996) 50 Cal.App.4th 810, 815

- 816 [defendant entitled to “greatest whole

number of days

, ” which does not exceed 15 percent].) Fifteen percent of 236 is 35.4.

Dr opping the fraction as required by law, defendant was entitled to 35 days of conduct

credit rather than 36. We shall modify the award of conduct credits accordingly.

Having undertaken an examination of the entire record, we find no arguable error

that w ould result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to decrease conduct credits to 35 days pursuant to

se ction 2933.1, for a total of 271 days of presentence custody credit s

. The trial court is

directed to prepa re an amended abstract of judgment and to forward a certified copy of

2 Undesignated statutory references are to the Penal Code.5

the amended abstract to the Department of Corrections and Rehabilitation. As modified,

the judgment is affirmed

.

/s/ Robie, J.

We concur:

/s/

Blease , Acting P. J.

/s/

Butz , J.