P. v. Cordoza

Filed 9/29/06 P. v. Cordoza CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Four Redwood City businesses reported being burglarized during the period from November 2003 to February 2005. Stolen items included cameras, testing equipment, computers, and other electronic equipment. The value of the property stolen ranged from approximately $9,000 in one case to over $18,000 in another.

On March 4, 2005, a Redwood City police officer learned that the Los Altos Police Department had conducted a search pursuant to a warrant of a storage unit in Redwood City owned by appellant Kenneth Cordoza. Police found hundreds of items of stolen property in appellant’s storage unit, including notebook computers, dismantled security cameras, tools, and medical supplies. Several victims of the Redwood City burglaries positively identified items found in the storage unit. Officers also discovered approximately 1,000 keys in the storage unit, some of which were inside “knox boxes,” or metal key boxes. Knox boxes are commonly used by large businesses and contain most of the keys for the premises. Police discovered one knox box with the front lock drilled out and the contents emptied. One of the keys found by police bore a label identifying it with one of the four businesses that had been burglarized in Redwood City.

Officers also found several plastic bags in the office area of appellant’s storage unit containing a substance that presumptively tested positive for methamphetamine. In addition, officers located empty bags, an electronic scale, and approximately 50 glass smoking pipes. The methamphetamine weighed approximately 26 grams.

A Los Altos police officer prepared the statement of probable cause supporting the search warrant for appellant’s storage unit. The officer stated he had been assigned to investigate a residential burglary in Los Altos. The victim of the burglary reported that wheels from a stolen bicycle were being sold on eBay. Further investigation led the officer to Jay Birdwell, an individual residing in Cupertino who was selling the bicycle wheels on eBay. After a search of Birdwell’s premises failed to locate the bicycle wheels, Birdwell informed the officer that he was selling the wheels for appellant, who did regular business with Birdwell. Birdwell stated that the bicycle wheels were located in appellant’s storage unit along with other stolen items with an estimated value of over $1 million. He knew the items in appellant’s storage unit were stolen because appellant had told him so. Birdwell said appellant contacted him frequently and paid him a 30% commission to sell items on eBay.

In a ten-count complaint filed on July 28, 2005, appellant was charged with nine felony counts, including four counts of commercial burglary (Pen. Code, § 460, subd. (b)), two counts of grand theft (Pen. Code, § 487, subd. (a)), one count of receiving stolen property (Pen. Code, § 496, subd. (a)), one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378), and one count of possession of psilocybin, a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Appellant was also charged with one misdemeanor count of possessing drug paraphernalia in violation of Health and Safety Code section 11364.

On March 1, 2006, appellant entered no contest pleas to one count of receiving stolen property (Pen. Code, § 496, subd. (a)) and one count of commercial burglary (Pen. Code, § 460, subd. (b)). In exchange for the plea, the prosecutor agreed to dismiss the remaining charges with the understanding that appellant’s maximum sentence would be two years in prison if the court chose not to grant probation.

For sentencing purposes, the probation officer identified the following circumstances in aggravation pursuant to rule 4.421 of the California Rules of Court: the victims were vulnerable in that appellant appeared to have acquired keys to gain access to the victims’ buildings, appellant was in unlawful possession of a significant amount of property of considerable value, he had engaged in violent conduct and received prison commitments as a result of violating probation, his criminal behavior had escalated in frequency, and previous grants of probation had failed as a result of appellant’s non-compliance. Appellant has an extensive criminal history, including six prior convictions for felonies and 22 prior convictions for misdemeanors spanning the last 24 years. His misdemeanor convictions are primarily for drug-related offenses, but he has also been convicted of theft-related activities, battery, and Vehicle Code violations. The probation officer identified no circumstances in mitigation. (Cal. Rules of Court, rule 4.423.)

With regard to presentence custody credit, the probation officer noted that appellant had first been arrested on March 4, 2005, and released for insufficient evidence on March 8, 2005. This resulted in five days of custody credit. Appellant was rearrested on July 28, 2005, while he was in custody in Santa Clara County on a probation violation stemming from his arrest in San Mateo County for the offenses for which he was charged in this matter. The record on appeal does not disclose how long appellant was incarcerated in Santa Clara County before he was rearrested for the San Mateo County offenses. The Santa Clara County Superior Court revoked appellant’s probation and committed him to 16 months in prison, although appellant was returned to the San Mateo County jail on September 23, 2005, where he apparently remained until the sentencing hearing on March 29, 2006. The period from appellant’s rearrest on July 28, 2005, until sentencing in this matter on March 29, 2006, totaled 245 days.

The probation officer advised the court that appellant’s sentencing for this matter could run concurrent with, or consecutive to, the term for appellant’s probation violation, which ran from August 17, 2005, until February 6, 2006. Excluding the term appellant served for his probation violation, his credits were calculated to be 57 actual days, plus 28 days conduct credits, for a total of 85 days. For concurrent sentences (i.e., including the term served for his probation violation), the probation officer calculated appellant’s credits to be 250 actual days plus 154 days for conduct credits, for a total of 374 days. The probation report incorrectly lists appellant’s conduct credits as 154 days instead of 124 days.[1] However, the total days credited, 374, is correct because it is the sum of 250 days plus 124 days.[2]

At the sentencing hearing on March 29, 2006, the trial court denied probation and sentenced appellant to the mid-term of two years for receiving stolen property, with a concurrent term of two years for commercial burglary. The court awarded appellant a total of 374 days of presentence custody credit, consisting of 250 actual days plus 124 days of Penal Code section 4019 conduct credit.[3] The court imposed a $20 court security fee, a $200 restitution fine, and stayed a fine of $200 pending successful completion of parole. The court ordered payment of restitution to one of the victims in the amount of $2,917.85. As for the remaining victims, who had yet to make claims for restitution, the court ordered restitution in amounts to be determined by the Victims’ Compensation Claims Board. Appellant was ordered to submit to genetic marker testing pursuant to Penal Code section 296.

Appellant filed a timely notice of appeal from the judgment. Appellant did not seek to obtain a certificate of probable cause to challenge the judgment. Therefore, his appeal may be based solely on the denial of a motion to suppress evidence under Penal Code section 1538.5, or on grounds arising after entry of the plea that do not affect its validity. (Pen. Code, § 1237.5, subd. (b); Cal. Rules of Court, rule 30(b).) Although appellant did not move to suppress evidence, he did file a motion while acting in propria persona to learn the identity and whereabouts of the informant, Jay Birdwell, who was identified in the declaration supporting the search warrant. In the alternative, appellant sought to dismiss the complaint, claiming the search warrant was based on uncorroborated statements falsely implicating him. The record reflects that appellant entered his no contest plea before the trial court had an opportunity to rule on his motion.

Appellant’s counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. Citing Anders v. California (1967), 386 U.S. 738, 744, appellant’s counsel listed the following issues that might “arguably support” an appeal: “Did the court abuse its discretion in sentencing appellant to state prison? Did the court err in computing appellant’s custody and conduct credits?” Also, along with his notice of appeal, appellant filed a “summary of argument” purporting to support his contention he is entitled to 586 days of presentence custody credits.[4] He also contends he is entitled to additional conduct credits under Penal Code section 2931 (in addition to presentence conduct credits under Penal Code section 4019) for the time he was in the “constructive custody” of the Department of Corrections and Rehabilitation while serving his term for violating probation.

We have reviewed the entire record, and we agree with counsel’s assessment that no issue warrants briefing. As for the issues identified by counsel that might arguably support an appeal under Anders v. California, supra, 386 U.S. 738, our review of the record confirms that such issues are not “potentially arguable” and merit no further briefing. Even if there were support in the record for appellant’s claim he is entitled to additional presentence custody credits, such a claim is not cognizable on appeal when it is the only appellate issue raised and the defendant has not first sought to correct the record in the trial court. (Pen. Code, § 1237.1; cf. People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12 [no need to file motion in trial court to correct presentence custody credits when multiple issues raised on appeal].) The record contains no indication appellant filed a motion in the trial court to correct his presentence custody credits.

Disposition

The judgment is affirmed. The trial court is directed to correct the minutes and the abstract of judgment to reflect that appellant was credited with 124 days of conduct credit pursuant to Penal Code section 4019. This clerical correction does not alter the total number of days of presentence credit awarded to appellant, which remains unchanged at 374 days.

_________________________

McGuiness, P.J.

We concur:

_________________________

Parrilli, J.

_________________________

Siggins, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] Presentence custody credits are calculated under Penal Code section 4019. “The correct amount of credit is calculated by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]” (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.) Dividing 250 days of actual custody by 4 equals 62.5, which is rounded down to 62 and multiplied by 2, yielding 124 days conduct credit.

[2] This clerical error was repeated in the court’s oral judgment, the minute order, and the abstract of judgment. Although the total days credited for presentence custody is correct, the record should be corrected to reflect the proper number of days awarded under Penal Code section 4019. We have the inherent power to correct clerical errors in the judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

[3] The trial court incorrectly stated that appellant’s conduct credits under Penal Code section 4019 equaled 154 (instead of 124) days. The total of 374 days credited was nevertheless correct.

[4] Appellant contends he had been in continuous custody for 391 days (i.e., from the date of his initial arrest on March 4, 2005) at the time of sentencing in this matter. We can find nothing in the record to confirm that appellant was continuously in custody from March 8, 2005, when he was released, until July 28, 2005, when appellant was rearrested for the San Mateo County charges. Although the probation report indicates that appellant was in custody in Santa Clara County at the time of his rearrest on July 28, 2005, the record does not disclose when appellant was first taken into custody in Santa Clara County.