P. v. Jones
Filed 8/22/07 P. v. Jones CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL ALAN JONES, Defendant and Appellant. | C051634 (Sup.Ct.No. CM021385) |
Investigating a report of a reckless driver, officers found defendant Nathaniel Alan Jones asleep at the wheel of a stolen vehicle which still had its motor running. When awakened by an officer, defendant accelerated, ran over an officers foot and hit the body of another officer before the car came to a stop. As officers pulled defendant from the car, he resisted.
Defendant entered a plea of no contest to receiving stolen property (Pen. Code, 496, subd. (a); undesignated section references are to this code) and obstructing an officer, a misdemeanor ( 148, subd. (a)(1)) in exchange for dismissal of the remaining count [unlawful driving or taking of a vehicle]. Two misdemeanor drunk driving counts were dismissed for insufficient evidence. The court suspended imposition of sentence and granted probation for a term of four years subject to certain terms and conditions including 240 days in county jail with credit for 54 days served.
Defendant violated probation. He had been terminated from the Life Recovery Ministry program. The court reinstated defendant on probation subject to an additional 120 days in county jail and, if given permission by the probation officer, residential treatment.
A petition alleged that defendant again violated probation in that he had been terminated from the Skyway House Alcohol and Drug Free Housing treatment program as well as its outpatient treatment program. The court summarily revoked probation and issued a no bail warrant.
Defendant was in the custody of the Department of Corrections. He had been convicted in Tehama County and sentenced to state prison for an aggregate term of two years for arson, felony vandalism and burglary.
Defendant waived his right to be present for purposes of the probation revocation proceedings. Defense counsel appeared on behalf of defendant. The court found defendant in violation of probation based on his Tehama County convictions. The court denied reinstatement on probation and sentenced defendant for the receiving offense to one-third the midterm or eight months to run consecutive to defendants two-year term for the Tehama County offense. For the misdemeanor obstructing offense, the court imposed a one-year concurrent term. In the Butte County case, the court awarded 54 actual days and 26 conduct days for
a total of 80 days of presentence custody credit. In the Tehama County case, the court confirmed the credits previously awarded, that is, 75 actual days and 36 conduct days for a total of 111 days of presentence custody credit.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, challenging the calculation of presentence custody credits. Because the record is inadequate to resolve his claim, we must remand.
The original probation report filed July 22, 2004, reflects that defendant was arrested on June 17, 2004, the date of the current offenses, and had time credits of 54 actual days and 26 conduct days. The original probation report notes that when defendant committed the current offenses, he was on court probation in case No. CM017423 for possession of a controlled substance. Defendant was found in violation of his court probation based on his current offenses. In initially granting probation for the current offenses, the court ordered defendant to serve 240 days in county jail with credit for 54 days. When reinstated on probation, the court ordered an additional 120 days in jail.
The probation officer subsequently reported that as of November 7, 2005, defendant was entitled to the following credits: 117 days from June 17, 2004, through October 11, 2004, and 56 days from November 10, 2004, through January 4, 2005, in Butte County Jail for the current offense (CM021385), and 75 days from February 10, 2005, through April 25, 2005, in Tehama County Jail. The actual days totaled 248 days. The probation officer calculated 124 days as conduct credit under section 4019.
On November 14, 2005, the trial court awarded 54 actual days and 26 conduct days for a total of 80 days of presentence custody credit in the Butte County case. In resentencing in the Tehama County case, the trial court awarded credit previously awarded, 75 actual days and 36 conduct days for a total of 111 days of presentence custody credit.
On March 7, 2006, defense appellate counsel Bill Davies sent a letter to the trial court stating the following:
I have been unable to get a response from the Butte County Probation Department, so I am referring my inquiry to your staff. When the defendant was sentenced, there was no mention of any calculation of actual days for time spent in Skyway House. Normally the defendant would be entitled to credits for actual days spent in the Skyway House, but not good time/work time credits. [Citation.] But it is unclear from the report of the probation officer just how long the [defendant] was at the Skyway House, yet i[t] is fairly clear from the chronology of the case that he spent some time there.
On March 10, 2006, Davies sent a letter to the trial court stating:
I have now spoken to the probation officer, and she has resolved all questions I had regarding the calculation of the defendants credits. You do not need to take any action on my letter dated March 7, 2006. (Underscoring omitted.)
While Daviess questions concerning the calculation of custody credits have been resolved to his satisfaction by a conversation off the record with the probation officer, the record on appeal fails to reflect the reason for the discrepancy between that recommended by the probation officer on November 7, 2005, and the courts award on November 14, 2005. As of November 7, 2005, the probation officer stated that defendant was entitled to credit for time spent in Butte County Jail for the current offense as follows: 117 days from June 17, 2004, through October 11, 2004, and 56 days from November 10, 2004, through January 4, 2005, or 173 actual days. On November 14, 2005, the trial court awarded 54 actual days and 26 conduct days for a total of 80 days of presentence custody credit in the Butte County case. Defendant claims he signed a waiver of credits with respect to time spent in rehabilitation but not for time spent in jail. The record does not reflect defendants waiver or the time spent in rehabilitation. Defendant asserts he is entitled to more credit and the record as it stands suggests he may be. We must remand to the trial court. (Pen. Code, 2900.5, subd. (d) [trial court has mandatory duty to calculate presentence custody credits].)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
We also note an error in preparation of the abstract of judgment. It fails to reflect under other orders, the one-year concurrent term imposed for misdemeanor obstruction. We will order the abstract corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The matter is remanded to the trial court for further proceedings with respect to presentence custody credit only. The judgment is otherwise affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting under other orders the one-year concurrent term for misdemeanor obstruction and to forward a certified copy to the Department of Corrections and Rehabilitation.
MORRISON , Acting P.J.
We concur:
ROBIE , J.
BUTZ , J.
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