People v. Kirwin CA4/2

I.

INTRODUCTION

Defendant and appellant Adam Douglas Kirwin pled no contest to receiving a

stolen vehicle (Pen. Code,1 § 496d) and admitted that he suffered a prior strike conviction

(§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). Pursuant to a provision of the plea

agreement, the prosecutor and defendant agreed that there would be no finding that a

motor vehicle was “involved in or incidental to the commission of the offense.” On the

day of sentencing, the trial court found that a motor vehicle was used and sentenced

defendant to the agreed upon term of 32 months in prison. On appeal, defendant

contends that this court should strike the finding that a motor vehicle was used in the

commission of the offense because it violates the plea agreement and his constitutional

right to due process. He also asserts that the trial court erred in orally pronouncing his

presentence custody credits. We agree and will strike the finding that a motor vehicle

was used. We also agree with the parties that the court erred when it orally found

defendant had 64 days of actual custody, rather than 94 days of actual custody as

correctly represented by the court’s minute order and the…