P. v. Roalston

Filed 2/14/07  P. v. Roalston CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, John J. Cheroske, Judge.  Affirmed as modified.

                        Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

BACKGROUND

            On April 8, 2003, the District Attorney for Los Angeles County filed a complaint alleging that defendant and appellant Derrick Lanard Roalston (defendant) unlawfully possessed an assault weapon in violation of Penal Code section 12280, subdivision (b)[1].  On July 9, 2003, pursuant to a plea agreement, defendant pleaded guilty to the complaint.  The trial court sentenced defendant to three years in state prison, suspended imposition of sentence, and placed defendant on probation for three years.  The trial court awarded defendant seven days of presentence credit, and imposed a $200 restitution fine (§ 1202.4, subd. (b)). 

            On November 3, 2005, defendant was arrested for a probation violation.  On February 6, 2006, defendant admitted that he violated his probation.  The trial court revoked defendant's probation and imposed the suspended three-year sentence.  The trial court granted defendant 151 days of presentence credit, and imposed a $600 restitution fine, an increase from the $200 fine the trial court imposed when it granted probation. 

            In his notice of appeal, defendant raises as an issue the failure to grant him an additional 462 days of actual credit for time he allegedly spent in custody in other cases while he was on probation in this case.  We appointed counsel to represent defendant in this appeal.  After examination of the record, counsel filed an opening brief asking this court to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436.  On August 18, 2006, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days in which to submit by brief or letter any grounds of appeal contentions, or argument he wished this court to consider.  Defendant did not submit any brief or letter.

             We reviewed the record and requested supplemental briefing from the parties addressing the issue of whether the trial court had improperly increased defendant's restitution fine from $200 to $600.  Because the trial court erred when it increased defendant's restitution fine and the corresponding parole revocation restitution fine (§  1202.45), we order the abstract of judgment modified to reflect a restitution fine of $200 and a corresponding suspended parole revocation restitution fine of $200.

DISCUSSION

I.          Defendant's Credits

            Section 2900.5 provides that a convicted person shall receive credit against his or her sentence for all days spent in custody, including presentence custody (subd. (a)), but â€