P. v. Hart
Filed 11/14/13 P. v. Hart CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
CHILICO DAVID HART,
Defendant and Appellant.
A138076
(
Nos. SCR-599406, SCR-607909,
SCR-611461 & SCR-620586)
Chilico
David Hart (appellant) was convicted and pled no contest to various offenses in
four criminal cases, and the trial court imposed a total prison term of five
years eight months. Appellant’s counsel
has raised no issue on appeal and asks this court for an
determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S.
738; People v. Wende (1979) 25
Cal.3d 436.) Appellant has filed a
supplementary brief contending that his sentence is unlawful because the total
sentence exceeds the maximum authorized sentence, if periods of probation for
which appellant waived custody credits
are treated as part of the total sentence.
We find no arguable issues and affirm.
BACKGROUND
In
June 2011, in SCR-599406, appellant was convicted of
grand theft (§ 487, subd. (a)), receiving stolen property (§ 496,
subd. (a)), and possession of matter depicting sexual conduct of persons under
18 years of age (§ 311.11). In
September, appellant was placed on formal probation for three years, on the
condition that he enter a residential
treatment program at Redwood Gospel Mission. In October, probation was summarily revoked.
In
January 2012, in SCR-607909, appellant was convicted of burglary (§ 459)
and vandalism (§ 594, subd. (a)).
Also in January 2012, appellant was convicted of possession of a controlled
substance by a prisoner (§ 4573.6).
In March 2012, the trial court sentenced appellant to a prison term of
five years and suspended execution of that sentence, placing appellant on
probation on the condition that he again participate in the residential
treatment program at Redwood Gospel Mission.
Appellant waived 349 days of custody credits, plus future credits for
time spent in the treatment program.
In
April 2012, the trial court found appellant violated probation. In May, the court resentenced appellant to a
total prison term of five years.
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In
November 2012, in SCR-620586, appellant pled no contest to a charge of stalking
(§ 646.9, subd. (a)). In January
2013, the trial court added a consecutive eight months to the sentence imposed
on the other three cases, for a total prison term of five years eight
months. The court also imposed various
fines. This appeal followed.
DISCUSSION
We
have reviewed the entire record and have found no arguable appellate issues.
In
his supplementary brief, appellant contends the sentence imposed by the trial
court is unlawful because the total sentence exceeds the maximum statutory
authorized sentence, if periods for which appellant waived custody credits are
treated as part of the total sentence.
His claim is foreclosed by the California Supreme Court’s decision in
(Johnson). Johnson
held that, because “defendants may waive provisions that are intended for their
benefit†(id. at p. 1057), a
defendant may expressly waive entitlement to credits for past and future days
in custody against an ultimate prison sentence, provided the waiver is knowing
and intelligent (id. at pp.
1054-1055). In the present case,
appellant knowingly and intelligently waived prior and future custody credits
when he was placed on probation in March 2012.
Johnson further held that a
trial court may, in addition to conditioning probation on waiver of custody
credits, impose a suspended sentence of the maximum length authorized by law. (Id.
at pp. 1055, 1057-1058.)
probation is conditioned upon completion of a residential treatment program,
custody credit waivers ensure the defendant’s ‘optimum chances of success in
[the] treatment program, while reserving an appropriate sentence if, despite
the opportunity received, the treatment program and probation are not
completed.’ †(Id. at p. 1056.)
waiver gives a defendant “an incentive to successfully complete the residential
treatment program based on the knowledge that failure to do so would expose him
to imposition of the [maximum] prison sentence unreduced by previously served
custodial time.†(Id. at pp. 1056-1057.) The
trial court relied on similar reasoning in requiring the custody credit waiver
in the present case.
Appellant
was adequately represented by legal counsel throughout the proceedings. The trial court’s sentence and fines are not
unlawful. There are no legal issues that
require further briefing.
DISPOSITION
The judgment
is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
references are to the Penal Code.
and we affirmed following our independent review of the record pursuant to
25 Cal.3d 436.
