P. v. Peraza

Filed 3/6/07 P. v. Peraza CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:*

In case No. BA294303, Gilberto A. Peraza (defendant) appeals from the judgment entered following revocation of probation previously granted after his negotiated plea of guilty to second degree burglary of a vehicle. (Pen. Code, 459).[1]After revocation of probation and at sentencing, the trial court imposed a prison term of 16 months, which was ordered to be served concurrently with the 16-month prison term imposed in a new, unrelated case, No. BA296370.[2]

We appointed counsel to represent defendant on this appeal. After an examination of the record, counsel filed an Opening Brief in which no issues were raised.

On July 3, 2006, we advised defendant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.

No response has been received to date.

To comply with the recent decision in People v. Kelly (2006) 40 Cal.4th 106, 123, we have set out a short factual summary. We also mention defendants claim at postrevocation sentencing that he was entitled to 365 days of presentence section 2900.5 credit, in lieu of the 30 days of actual presentence credit the trial court calculated he had earned for his post-grant-of-probation confinement in the county jail.

FACTS

On December 3, 2005, in the mid-Wilshire area of Los Angeles, Los Angeles police officers observed defendant using a screwdriver to enter a car. Defendant then attempted to use the screwdriver on the cars engine. Defendant was arrested, and charges were filed in the instant case, No. BA294303. The probation report indicates that defendant was 25 years old, and he had recently arrived in California from El Salvador. In 2005, he had three other law enforcement contacts primarily involving vehicle burglary and drug use that resulted in convictions. Defendant told the probation officer that he suffered from cocaine addiction and that he was stealing car radios. He was unemployed.

On December 13, 2005, defendant entered into a negotiated plea of guilty to second degree burglary of a vehicle. Imposition of sentence was suspended, and the trial court ordered formal probation on conditions including defendant serve 365 days in the county jail. He was also ordered to participate in a program of drug abuse treatment. Defendant was awarded 16 days of section 2900.5 credits, consisting of 11 days of actual custody and five days of good time work time credit. He was committed to the Los Angeles County jail. Thirty days after sentencing, the Los Angeles County Sheriff gave defendant an early release.

Defendant immediately committed a new offense. On January 13, 2006, police officers stopped him in the same general area of Los Angeles where he had committed the instant offense. He was driving a recently stolen Toyota Camry. Defendant was arrested, and a charge of driving or taking a motor vehicle was filed against him in the new case, No. BA296370.

In the instant case, No. BA294303, on January 18, 2006, probation was preliminarily revoked, and defendant was remanded to custody.

On January 31, 2006, defendant entered into a negotiated plea agreement involving both cases. By that agreement, he was promised that his plea in the new case and his admission of a violation of probation in the instant case would result in concurrent 16-month prison terms. Pursuant to the plea bargain, defendant entered a no contest to driving and taking a motor vehicle. (Veh. Code, 10851, subd. (a).) In the instant probation violation matter, he admitted the violation, and the trial court revoked probation.

As promised, at sentencing on February 17, 2006, in the instant and the new cases, the trial court imposed concurrent 16-month prison terms. Additionally, in the instant probation violation matter, No. BA294303, the trial court awarded defendant 84 days of section 2900.5 credits, consisting of 66 days of actual credit and 18 days of good and work time credit.

Before sentencing, defendants counsel objected that defendant was not awarded enough section 2900.5 credit: he objected that defendant had been ordered to serve 365 days in the county jail as a condition of probation and was released early after spending 30 days in confinement. Counsel argued that notwithstanding the early release, defendant had fulfilled that condition of probation, and defendant was thus entitled to 365 days of section 2900.5 credit. The trial court ruled that defendant was not entitled to additional credit and said the following: [Defendant] is certainly entitled to appeal the custody credit portion. But at this time, I am unwilling to give him credit for a year when he only did 30 days and committed this new crime on or about January 13, 2006.

In the probation violation matter, No. BA294303, defendant filed a notice of appeal indicating that he was raising only matters occurring after judgment which did not challenge the validity of the admission, to wit: Custody credits granted at the time of sentencing.

DISCUSSION

We inquired into defendants sentencing claim that he was entitled to 365 days of section 2900.5 credit in the probation violation matter.

Section 2900.5 provides in pertinent part as follows. (a) In all felony and misdemeanor convictions, . . . when the defendant has been in custody, . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . . [] (b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed. [] (c) For the purposes of this section, term of imprisonment includes any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence . . . . [] (d) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment . . . .

The court in People v. Washington (1978) 80 Cal.App.3d 568 addressed the same issue defense counsel argued at sentencing. The Washington court held that a defendant will not be granted credit for time ordered to be served as a condition in the county jail if it was not actually served due to an early release. (Id at p. 573.) Accordingly, Washington indicates that defendant was entitled to no further actual custody credits beyond the 30 days the trial court awarded him.

We also looked into the trial courts calculation of section 2900.5 credit. According to our calculations, the trial court properly should have awarded defendant 79 days of total presentence credit, consisting of 55 days of actual credit, plus 24 days of good time work time credit. However, as the trial court awarded defendant total section 2900.5 presentence credit of 84 days, we conclude that the errors in the trial courts calculation of credit are de minimusand need not be addressed. Accordingly, we declined to request the parties brief the error.

We have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

* DOI TODD, Acting P. J., ASHMANN-GERST, J., CHAVEZ, J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The instant probation matter, case No. BA294303, and the new, unrelated case, No. BA296370, were considered concurrently in the trial court. However, defendants notice of appeal indicates that he has filed an appeal only from the judgment in the probation violation matter.