P. v. Davis

Filed 9/12/07 P. v. Davis CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Scott William Davis appeals from an order revoking his probation, following an admission of violation, and executing a previously suspended prison term. His counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

BACKGROUND

The following facts regarding the charged incident are taken from appellants opening brief. On August 8, 2002, appellant stole $311.85 from a cash register located in Sonoma Joes Bar and Casino. The theft was recorded on the bars surveillance videotapes. The tapes showed appellant going behind the bar, opening the cash register after several attempts, and removing the cash inside. Police were informed of the theft later that day, but as yet appellants identity was unknown. On August 28, 2002, two security guards remembered having seen appellant in the bar on the day of the crime. Appellant had appeared intoxicated, bumped into their table, and had spoken to the two guards for a moment, saying that he was looking for employees for his window washing business.

Sometime later, one of the security guards noticed the suspect washing windows at Sonoma Valley Bagel. He approached appellant and informed appellant of a possible window washing job. Appellant identified himself to the guard as Scott Davis, and gave the security guard his home and cell phone numbers. On September 4, 2002, appellant was questioned by the police officer assigned to investigate the theft. Appellant refused to discuss the incident, citing his privilege against self-incrimination. The officer was in possession of a booking photo of appellant, taken in April 2002, and because of its similarity to the thief in the surveillance tapes, he forwarded the case to the Sonoma County District Attorneys Office.

A warrant was issued for appellants arrest on December 19, 2002. Defendant initially moved to act as counsel in his own defense. During arraignment on March 21, 2003, the trial court denied appellants request, determining that he did not have a full understanding of the disadvantages of self-representation. He was assigned a public defender.

On March 26, 2003, appellant was charged with, and pled not guilty to, one count of petty theft with a prior (Pen. Code, 666). The information alleged that appellant had prior convictions in 1983 and 1990 (Pen. Code, 459, 237), as well as a prior strike conviction for assault with a deadly weapon with great bodily injury in 1993. (Pen. Code, 245, subd. (a)(1), 12022.7, subd. (a)), and 1170.12.) Apparently, appellant had assaulted his mother. Appellant claimed that he committed this crime while in a drug-induced delusional state.

On June 10, 2003, appellant filed a motion to strike the prior strike from consideration, citing the non-violent nature of the crime at issue, the 10 years that had elapsed since the prior strike occurred (in 1993), and appellants high motivation to confront his alcohol abuse issues. The motion was accompanied by letters detailing long-term drug and alcohol rehabilitation programs which had accepted appellant for treatment. The letters indicated that treatment was the most appropriate remedy in appellants case. In September 2003, appellants parents arranged for a private attorney to take charge of appellants defense, and that attorney moved for a continuance, which the court granted until November, 2003.

Following that continuance, on November 20, 2003, appellant freely and voluntarily waived his right to a court and jury trial, and pled guilty to one count of violating Penal Code section 666. As part of the plea agreement, the term of appellants sentence was left open, in return for the striking of appellants prior strike conviction from his record. At the sentencing hearing on March 11, 2004, the court found unusual circumstances and granted probation. The court imposed and suspended a sentence of three years, citing aggravating factors. The court required appellant to continue to reside at the residential treatment program, comply with all program requirements, and make satisfactory progress. Appellant was required to pay fines of $311.85 in restitution to Sonoma Joes, $880 to the restitution fund, $250 as a report preparation fee, and $165 as a probation supervision fee. The court also sentenced appellant to one year of jail time, but credited him 474 days of time served, including 316 actual days in custody, and 158 conduct days.

Appellants probation began and residential treatment program continued. However, in August 2004, appellants probation was revoked for violating the terms of his probation, by failing to abstain from the use of alcohol. Appellant made a free and voluntary admission of this violation, and in September 2004, his probation was reinstated. In May 2005, appellants probation was again revoked, and his residential treatment program became unavailable to him. On June 9, 2005, appellant was informed of, and waived his right to, a violation of parole hearing, and admitted that he had been in possession of and under the influence of drugs. On August 16, 2005, appellant was referred to drug court.

Apparently, transfer of appellants case proceeded smoothly, and on August 25, 2005, appellant agreed to be bound by the orders of the drug court. Soon after, in September 2005, he was released upon his own recognizance. After this time, for approximately one year, appellant was present in court for regular reviews of his status, although occasionally he was remanded into custody and then released within a few days.

On November 6, 2006, appellant was terminated from drug court for parole violations. On December 19, 2006, appellants probation was revoked, his three-year suspended sentence was reinstated, and he was awarded credit for 296 days of presentence custody, 198 in actual time, and 98 for conduct. Appellants attorney maintained that appellant had nearly graduated from his treatment program at the time of the violation, and requested a Johnson waiver with one years time in a county jail, as well as credit for time spent in drug court mandated rehabilitation programs. (People v. Johnson (2002) 28 Cal.4th 1050; People v. Johnson (1978) 82 Cal.App.3d 183.) The court denied appellants request and declined to award credit to appellant for the days he spent under the restrictions of the drug court, because during that time appellant was not in custody.

Appellant filed a timely notice of appeal on January 29, 2007.

DISCUSSION

Our independent review of the record reveals no arguable issues. Accordingly, the judgment is affirmed.

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Lambden, J.

We concur:

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Kline, P.J.

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Richman, J.

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