P. v. Flores

Filed 6/26/07 P. v. Flores CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Jose Angel Flores was sentenced to 16 months in state prison after the trial court revoked his probation in two separate cases. Appellants court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing. We modify the judgment to correct an error in the calculation of appellants presentence custody credits. Except as modified, the judgment is affirmed.

Factual and Procedural Background

On November 22, 2002, appellant pleaded no contest to one count of carrying a concealed firearm (Pen. Code,  12025, subds. (a)(1) & (b)(4)) in Napa County case number 111292. On March 4, 2003, appellant pleaded no contest to possession of a dirk or dagger (Pen. Code,  12020, subd. (a)) in Napa County case number 112391. On April 3, 2003, the court suspended imposition of sentence and granted three years formal probation in both cases. The court ordered appellant to serve 30 days in case number 111292 and 90 days in case number 112391, with the jail terms to be served consecutively. Conditions of probation in both cases included that appellant report to his probation officer at least once a month, attend Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings at least two times per week, and pay a $200 restitution fine pursuant to Penal Code section 1202.4.

Appellant admitted a violation of probation on October 3, 2003. The trial court revoked and reinstated probation on the condition appellant pay a fine of $250 in each of the two cases and serve consecutive terms of 30 days in each of the two cases, with credit for time served. Appellant admitted a second violation of probation on August 23, 2004. On that occasion, the trial court revoked and reinstated probation without changing the terms and conditions of probation. On January 14, 2005, after the People petitioned to revoke probation on the ground appellant had tested positive for methamphetamine, the trial court revoked and reinstated probation on the condition that appellant serve 180 days in case number 111292 and 91 days in case number 112391, with credit for time served. As an additional condition of probation, the court required appellant to complete an outpatient or residential drug treatment program as directed by his probation officer. Appellants probation was revoked and reinstated a fourth time on February 23, 2005. On that occasion, the court modified the conditions of probation to require that appellant refrain from wearing or possessing gang clothing and displaying gang-related hand signs. The court also ordered appellant to provide proof of ongoing mental health and drug treatment enrollment.

Napa County probation officer Sindy Biederman took over appellants cases in September 2004. On March 14, 2005, she directed appellant to enroll in the HOPE drug treatment program. Because appellant was then living in Solano County and his treatment program was located there, Biederman requested on March 29, 2005, that the Solano County probation department supervise appellants cases. Biederman learned that Solano County agreed to provide the requested supervision on May 4, 2005. She did not see appellant again after that date.

Solano County probation officer Donald Kilfoyle was assigned appellants cases on May 4, 2005. Kilfoyle directed appellant to report to him once a week, to drug test twice a week, to attend the HOPE drug treatment program, and to attend two AA/NA meetings per week. Appellant did not report to his probation officer either by phone or in person after July 11, 2005. Appellant tested negative three times for drugs in June 2005 (after his probation officer reduced his testing requirement to once a week), but he failed to provide a test as directed on July 11, 2005. Appellant provided written proof of attendance at one AA meeting between the period May 4, 2005, to July 11, 2005.

Kilfoyle contacted the HOPE program on August 9, 2005. He learned that appellant had not attended the program in July 2005. Kilfoyle closed the file and advised Biederman, appellants Napa County probation officer, that he had not had any contact with appellant and that appellant had failed to complete the HOPE program.

On September 14, 2005, the People filed a petition to revoke probation, alleging appellant failed to pay court-ordered fines, failed to successfully complete the HOPE program, failed to attend two AA/NA meetings per week, and failed to report to his probation officer as directed. The court ordered probation summarily revoked and issued a no bail bench warrant for appellants arrest.

Appellant was taken into custody pursuant to the bench warrant on July 23, 2006. On August 9, 2006, following a contested hearing at which officers Biederman and Kilfoyle testified, the court found appellant had violated his probation in both cases. Specifically, the court found appellant had failed to complete the HOPE program and had also failed to report to his probation officer as directed.

The court sentenced appellant on September 26, 2006. The court revoked probation in both cases and sentenced appellant to the low term of 16 months in case number 111292 and to a concurrent 16-month term in case number 112391. Following the recommendation contained in the probation officers report, the court awarded appellant 169 days presentence custody credits in case number 111292 and 189 days presentence custody credits in case number 112391. The probation officers report reflects that the time served from the date of appellants arrest on July 23, 2006, until the date of sentencing on September 26, 2006, was credited to case number 112391 only. No credit was assigned to case number 111292 for that period of custody.

Appellant filed timely notices of appeal in both cases.

Discussion

Appellants counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so.

Our review of the record reveals an error in the calculation of presentence custody credit. Appellant was arrested on July 23, 2006, and remained in custody through the date of sentencing, September 26, 2006. He was properly credited with 66 days of actual time for this period of custody in case number 112391. However, he received no credit for this period of custody in case number 111292. When a court imposes concurrent sentences in two cases, a defendant is entitled to receive presentence credit in both cases to the extent the period of presentence custody is attributable to both offenses. (See Pen. Code,  2900.5, subd. (b); People v. Adrian(1987) 191 Cal.App.3d 868, 875-876.) Here, the court imposed concurrent sentences, and the period of presentence custody was attributable to both cases. The court erred in failing to award custody credits in case number 111292 for the period from July 23, 2006, until September 26, 2006. It may be that the probation officers calculations were made upon the assumption appellant would receive consecutive sentences. In any event, appellant should receive an additional 66 days of actual custody credit in case number 111292, for a total of 179 days actually served. His corresponding conduct credits (Pen. Code,  4019) should be 88 days, for a total of 267 days of presentence custody credits in case number 111292. (See People v. Smith (1989) 211 Cal.App.3d 523, 527 [describing formula for calculating conduct credits].)

The miscalculation of presentence custody credits results in an unauthorized sentence that may be corrected at any time. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-917; cf. People v. Scott (1994) 9 Cal.4th 331, 354.) Penal Code section 1237.1 provides that a request for correction of presentence custody credits should first be presented to the trial court. Although appellants counsel asked the trial court by letter dated January 22, 2007, to amend the abstract of judgment, we have not been advised whether the trial court has ruled upon appellants request. However, we need not defer to the trial court or await its ruling on the issue, because the trial court exercises no discretion when computing presentence custody credits but instead performs what amounts to a ministerial duty by applying an established formula. (People v. Jack, supra, 213 Cal.App.3d at p. 917.) Therefore, we direct the trial court to correct the presentence custody credits, to the extent it has not already done so.[1]

Aside from the ministerial error in the calculation of appellants presentence custody credits, which may be corrected without the need for any further briefing, our independent review of the entire record discloses no arguable error that merits further briefing.

Disposition

If it has not already done so, the trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment awarding appellant 267 days of presentence custody credits in Napa County case number A111292, consisting of 179 days actual time served plus 88 days of conduct credits. In all other respects, the judgment is affirmed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Pollak, J.

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[1] Because appellant was in custody on multiple occasions, the calculation of his custody credits is far from straightforward. There are a number of anomalies in the probation officers calculation of custody credits, including one period appellant was purportedly in custody (February 22 and 23, 2005) that was credited to neither case, despite an indication it was supposed to be credited to case number 112391. Also, the court had at one time corrected the record to reflect that one period of custody in case number 111292 was for 15 days instead of 14 days (see minute order dated April 3, 2003), yet that period of custody was subsequently computed as 14 days, which appears to be the correct number of days in custody. On the record before us, we cannot say these inconsistencies constitute errors requiring correction. Our disposition should not preclude the trial court from addressing these anomalies and, if appropriate, correcting appellants presentence custody credits accordingly.