P. v. Miller

Filed 7/17/07 P. v. Miller CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge. Affirmed as modified.

Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Deputy Attorney General, and Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

The District Attorney of Los Angeles County filed an information charging defendant and appellant Michael Dwayne Miller (defendant) with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)[1]) and battery with serious bodily injury ( 243, subd. (d)). The information also alleged that in committing the assault with a deadly weapon defendant personally inflicted great bodily injury on the victim. ( 12022.7, subd. (a).) Defendant pleaded not guilty.

Pursuant to a plea agreement, defendant withdrew his not guilty plea and pleaded no contest to the assault with a deadly weapon charge. The trial court placed defendant on formal probation for three years on various terms and conditions, including the condition that he serve 141 days in jail. The trial court gave defendant credit for 141 days of presentence credit consisting of 94 days of actual custody credit and 47 days of conduct credit. The trial court dismissed the battery with serious bodily injury charged and the great bodily injury allegation. Thereafter, the trial court found defendant to be in violation of his probation and revoked it. The trial court sentenced defendant to three years in state prison and gave him credit for 222 days of presentence credit consisting of 148 of actual custody credit and 74 days of conduct credit.

We appointed counsel to represent defendant in this appeal. After examining the record, counsel filed an opening brief asking this court to independently review the record in accordance with People v. Wende (1979) 25 Cal.3d 436. On January 3, 2007, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant did not submit a brief or letter.

We reviewed the record and informed the parties that it appeared that the trial court erred in its calculation of defendants presentence credit. We requested briefing from the parties on this issue. We affirm the judgment of conviction, but order the abstract of judgment modified to reflect that defendant has been awarded a total of 248 days of presentence credit consisting of 166 days of actual custody credit and 82 days of conduct credit.

BACKGROUND

At the probation revocation hearing, Los Angeles Police Department Officer Shawn Kinchla testified that at about 3:35 p.m., on June 1, 2006, he investigated the shooting of Shayna Latrice King at 827 West 50th Place. A conversation with Kings mother led Officer Kinchla to defendant who had some relationship with King. Officer Kinchla determined that defendant was on probation and that his probation address was 9714 South Figueroa Boulevard, number nine, a room at a hotel that served long-term guests. King, who apparently died as a result of the shooting, was the registered guest for room number nine. Defendant was not registered as a guest.

Officer Kinchla and other officers went to 9714 South Figueroa Boulevard, number nine. The front door was wide open and Officer Kinchla announced the officers presence, but received no response. As the officers were about to enter, defendant came to the front door. Defendant was ordered to lie on his stomach with his arms out to the side. Officer Kinchla ordered defendant to point his head to the left away from the bedroom, the room from which defendant had come. Officer Kinchla could hear that another person was still in that room.

As defendant lay prone, he turned his head to the right and said, in a low voice, Get rid of it. Defendant repeated this direction three to five times. The other occupant, Damecia Stingley, was ordered out and detained without incident. The officers then conducted a probation compliance search of the one-bedroom residence.

Officer Kinchlas partner recovered two pieces of a hard, off-white substance that resembled rock cocaine from a bureau drawer in the bedroom.[2] Each piece was in a plastic bag of the kind typically used to package rock cocaine. A box of similar plastic bags and a razor blade were recovered from the top of the bureau.

The officers also found documents from the Los Angeles County Sheriffs Department with defendants name on them and a casino card in defendants name in the drawer where the rock cocaine was found. The officers also found a cellular telephone that Officer Kinchla believed was defendants in the residence. Defendant had a $100 bill in his wallet and $179 in smaller denominations in his pocket. Defendant was arrested.

Defendant told Officer Kinchla that he did not live at 9714 South Figueroa Boulevard, number nine. He said he lived at 826 West Colden Avenue. A search of defendants DMV records showed the 826 West Colden address. Another team of officers went to that address.

Stingley, defendants girlfriend, Sheryl Scretchings, and defendants mother, Fertinia White, testified that defendant lived at 826 West Colden Avenue, apartment six on June 1, 2006. Defendant told Scretchings that he was at the South Figueroa address on that date because someone had told him that King had left her door open and people were going in and out. Defendant could not lock the door and waited there for King to return.

Defendant testified that on June 1, he lived with his mother at 826 West Colden Avenue. When defendant went to the probation department on May 8 or May 9 after being released, the probation department gave him some paperwork that contained the Figueroa Street address. Defendant told the probation department that he had been arrested at the Figueroa Street address, but had never lived there. He gave them the West Colden Avenue address as his address.

Defendant explained that he had called King the night before, but she had not answered. That morning, he went to Kings residence and the person living next door told him that King had not been home all night, that her door was open, and that someone had been inside of her residence. Defendant called King, who told him that she was watching children for her mother and would be home as soon as she could. Defendant did not lock the door and leave Kings residence because he did not have a key. He did not know if the manager of the complex had a key.

When the police arrived at Kings residence, defendant got down on the ground. He did not turn his head to look at Stingley, and did not say, Get rid of it, get rid of it. He did not know there were drugs, bags, or a razor blade in the residence. Defendant received the money he was carrying from family and friends. He intended to use the money to start paying restitution when he met with his probation officer. The cellular telephone belonged to King. He had never seen the Sheriffs Department documents before and did not leave them in Kings residence. He speculated that King downloaded them on her computer. He might have left the casino card there months earlier. According to defendant, King had previously been arrested for selling cocaine. Defendant admitted that, 13 years earlier, he had been convicted of selling cocaine.

Tomas Ramirez, a deputy probation officer for the County of Los Angeles, but not defendants probation officer, testified that probation documents indicated that defendants address of record was 826 West Colden Avenue. That address was input into the records on May 9, 2006. When an officer contacted Deputy Ramirez on June 1, he informed the officer that defendants address was on Colden. Deputy Ramirez also checked the court information system under defendants case number. That system listed defendants address as 9714 South Figueroa Street, number nine. Deputy Ramirez made that inquiry prior to giving the police any information.

The probation departments records do not always reflect a probationers correct address. Accordingly, when Deputy Ramirez determined that two addresses were listed for defendant and defendant had failed to report to the probation office, he asked the police officer to confirm where defendant lived if he encountered him.[3] The officer contacted Deputy Ramirez and informed him of defendants property that had been found at the Figueroa Street address and that when they asked [defendants] address for booking purposes, he also indicated that he was cited [sic] at 9714 South Figueroa.

The trial court found that there was more than sufficient evidence to prove, by a preponderance of the evidence, that defendant was in possession of the drugs and in violation of his probation. Defendant timely filed a notice of appeal.

DISCUSSION

Defendants Presentence Credit

Presentence credits are calculated under section 4019. (People v. Brown (2004) 33 Cal.4th 382, 405.) Under section 4019, presentence conduct credit is calculated by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.] (People v. Fry (1993) 19 Cal.App.4th 1334, 1341 [24 Cal.Rptr.2d 43].) (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) In our credit calculations, we include the date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526).

On January 24, 2006, defendant was arrested for the conduct that was the basis for his conviction. He remained in custody until he pleaded no contest and was granted probation on May 5, 2006. On June 1, 2006, defendant was arrested for the conduct that was the basis for the revocation of his probation. On June 7, 2006, the trial court revoked defendants probation. On June 8, 2006, when the trial court did not receive a report from the prosecutor, probation department, or police department concerning defendant, the trial court reinstated defendants probation and released him. The trial court subsequently revoked defendants probation and issued a bench warrant for defendants arrest. Defendant was arrested on June 27, 2006. Defendant remained in custody until his probation was revoked and he was sentenced to state prison on August 21, 2006. For these periods of custody, defendant was entitled to a total of 166 days of actual custody credit as follows: 102 days for the period from and including January 24, 2006, to and including May 5, 2006; eight days for the period from and including June 1, 2006, to and including June 8, 2006; and 56 days for the period from and including June 27, 2006, to and including August 21, 2006. (People v. Williams, supra, 79 Cal.App.4th at p. 1176, fn. 14; People v. Lopez, supra, 11 Cal.App.4th at p. 1124; People v. Smith, supra, 211 Cal.App.3d at pp. 525-526.) Based on 166 days of actual custody credit, defendant was entitled to 82 days of conduct credit (166 4 = 41.5; 41 x 2 = 82). (People v. Williams, supra, 79 Cal.App.4th at p. 1176, fn. 14.) The parties agree. We are satisfied from our examination of the record that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed. The abstract of judgment is ordered modified to reflect that defendant has been awarded a total of 248 days of presentence credit consisting of 166 days of actual custody credit and 82 days of conduct credit.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] All statutory citations are to the Penal Code unless otherwise noted.

[2] The parties stipulated that the two off-white rocks were cocaine.

[3] The prosecutor disclaimed any intention to proceed against defendant for a probation violation based upon his failure to report.