P. v. Davis

Filed 6/22/06 P. v. Davis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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In April 2004, defendant Matthew Erich Davis pleaded no contest to unlawful driving of a vehicle. (Veh. Code, § 10851, subd. (a).) He was sentenced to state prison for two years. Execution of sentence was suspended and defendant was placed on probation for three years on conditions including service of 180 days of incarceration and payment of a $200 restitution fine. (Pen. Code, § 1202.4, subd. (b).)

In September 2004, a petition was filed alleging that defendant violated probation by failing to pay a program fee and other court-ordered financial obligations. Defendant failed to appear and a bench warrant issued. In December 2004, he evidently was arrested and posted bail with the understanding that he appear in Yolo County court on January 3, 2005. However, he did not appear on that date. The next week he appeared in custody, posted bail, and was ordered to appear on February 1, 2005. Once again, he did not appear at the hearing. On April 7, 2005, the court was informed that defendant was in custody in another location.

On April 14, 2005, a petition was filed alleging that defendant violated his probation by being arrested in San Francisco for vehicle thefts committed on February 28, 2005, and March 24, 2005.

At a hearing in August 2005, defendant admitted the February 28, 2005, allegation. In preparation for the hearing, a probation report was filed stating that defendant was then entitled to 132 days of custody credit and 66 days of conduct credit.

On October 19, 2005, the probation officer informed the trial court by memorandum that the foregoing custody and conduct credit calculation was incorrect. The memorandum stated that, as a result of defendant's plea in this case, his probation on an earlier San Francisco case was violated. As a result of the violation, the San Francisco court sentenced him to prison for a term that was satisfied by presentence credit, and he was immediately paroled. Defendant's February 2005 San Francisco offense constituted a violation of his parole on the earlier San Francisco case. For that violation, the parole board sentenced him to prison for eight months, which ended on October 4, 2005. Thus, defendant was entitled to custody credit in this case only for the 76 days from March 11, 2004, through May 25, 2004, and then from October 4, 2005, to October 20, 2005.

At the Penal Code section 1204 hearing, defendant acknowledged that he had been convicted and placed on probation in San Francisco in 2001. His conviction in the present case constituted a violation of that probation. He knew that execution of sentence had been suspended in the present case, but he nevertheless committed the new offense in San Francisco. The trial court found that defendant had not demonstrated any ability to obey the laws. Execution of the prison sentence was ordered.

The probation officer stated that defendant was entitled to 106 days of custody credit and 52 days of conduct credit. Without acknowledging the officer's memorandum, defendant's trial counsel objected that he was entitled to credit â€