P. v. Dickey
Filed 10/17/13 P. v. Dickey CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
IRA M. DICKEY,
Defendant and Appellant.
D063790
(Super. Ct.
Nos. SCD231183, SCD212263, SCD227452,
SCE286737)
APPEAL from
an order of the Superior Court
of
County, Peter C. Deddeh, Judge. Affirmed.
Theresa O.
Stevenson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On the same
day in March 2011, the trial court sentenced Ira M. Dickey in four separate
cases and awarded him differing amounts of presentence
writ of error coram vobis seeking an
order directing the Department of
Corrections and Rehabilitation to recalculate his release date based on the
case in which he had earned the greatest number of presentence custody
credits. The trial court denied the
petition on both procedural and substantive grounds.
Dickey
appeals. His appointed appellate counsel
filed a brief requesting we independently review the record for error. (See People
v. Wende (1979) 25 Cal.3d 436, 441-442.)
Having done so and having identified no reasonably arguable appellate
issues, we affirm the judgment.
BACKGROUND
Case No.
SCD212263
On September 23, 2008, Dickey pleaded
guilty to owning and operating a chop shop (Veh. Code, § 10801) and being a
felon in possession of a firearm (formerly Pen. Code, § 12021, subd. (a)(1),
now Pen. Code, § 29800, subd. (a)(1)).
The trial court sentenced him to four years and eight months in prison,
but stayed execution of the sentence and placed him on three years of formal
probation. The court also awarded him
348 days of presentence custody credit, consisting of 232 days of actual
custody credit and 116 days of conduct credit under Penal Code section 4019.
On March 16, 2011, the court revoked
Dickey's probation and imposed the previously stayed sentence of four years and
eight months in prison. The court
awarded him 661 days of presentence custody credit, consisting of 331 days of
actual custody credit and 330 days of conduct credit under Penal Code section
4019.
Case No. SCE286737
On July 14, 2009, Dickey pleaded guilty
to fraudulently using a contractor's license number (Bus. & Prof. Code, §
7027.3). The court suspended imposition
of sentence and placed him on five years of formal probation.
On March 16, 2011, the court revoked
Dickey's probation and sentenced him to three years in prison to run
concurrently with the sentences in case numbers SCD231183, SCD227452, and
SCD212263. The court awarded him 189
days of presentence custody credit, consisting of 95 days of actual custody
credit and 94 days of conduct credit under Penal Code section 4019.
Case No.
SCD227452
On January 28, 2011, Dickey pleaded
guilty to unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd.
(a)). On March 16, 2011, the court sentenced him to eight months in
prison to run consecutive to his sentence in case number SCD231183. The court did not award him any presentence
custody credit.
Case No.
SCD231183
On January 28, 2011, Dickey pleaded
guilty to possessing a controlled substance for sale (Health & Saf. Code, §
11378) and admitted having a prior conviction for the same offense (Health
& Saf. Code, § 11370.2). On March 16, 2011, the court sentenced
him to five years in prison. The court
awarded him 196 days of custody credit, consisting of 98 days of actual custody
credit and 98 days of conduct credit under Penal Code section 2933.1.
Writ of Error
Coram Vobis
In February
2013, Dickey filed a petition for writ of error coram vobis requesting the trial court direct the Department of
Corrections and Rehabilitation to recalculate his release date based on the 661
days of presentence credit awarded in case number SCD212263, rather than the
196 days of presentence credit awarded in case number SCD231183.
The trial
court denied the petition on procedural grounds because a petition for writ of
error coram vobis is not
appropriately addressed to the court that rendered judgment. (Betz
v. Pankow (1993) 16 Cal.App.4th 931, 941, fn. 5 [a petition for writ of
error coram nobis is addressed to the
trial court and a petition for writ of error coram vobis is addressed to the appellate court].) The trial court also denied the petition on
substantive grounds, explaining:
"[W]hen
sentences in two or more cases are ordered to run concurrently, the 'controlling
case' is the case with the longest period of imprisonment after deducting the
total credits from the sentence imposed. . . . Case No.
SCD 231183 is the controlling case, with the sentence in Case No. SCD 227452
running consecutively[.] . . . Case Nos. SCD 212263 and
SCE 286737 are non-controlling cases.
[¶] . . . Pre-sentence credit awarded in a
non-controlling case has no effect on [Dickey's] ultimate release date. The law is clear that [Dickey] is not
entitled to have pre-sentence credit in the non-controlling case applied to the
controlling case, and that he may not receive cumulative credit for the
controlling and non-controlling cases.
[Citations.]
"Even
though sentences in two or more cases are served concurrently, each concurrent
sentence is separately calculated. Here,
the sentence in the controlling case, Case No. SCD 231183, is used to determine
the release date. Contrary to [Dickey's]
argument, credit against the sentence in a non-controlling case, such as Case
No. [SCD] 212263, has no effect on how long [Dickey] must remain
incarcerated. This is because when
[Dickey] has completed the sentence in the non-controlling case, minus any
credit against it, he would still need to serve the time (if any) left in the
controlling case." (Bold face omitted.)
DISCUSSION
Appointed
appellate counsel filed a brief summarizing the facts and proceedings
below. Counsel presented no argument for
reversal and instead requested we review the record for error as mandated by
Counsel further identified two possible, but not reasonably arguable
issues. (See Anders v. California (1967) 386 U.S. 738, 744.) These issues were: (1) whether the trial court erred in denying
the petition for writ of error coram
vobis on procedural grounds; and (2) whether the trial court erred in
denying Dickey's request to have his release date recalculated based on the
additional presentence custody credits awarded in SCD212263.
We granted
Dickey permission to file a supplemental
brief on his own behalf. He did not
do so.
As
requested by counsel, we reviewed the record for error and did not find any
reasonably arguable appellate issues.
Dickey has been competently represented by counsel on this appeal.
DISPOSITION
The order
is affirmed.
McCONNELL,
P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
