P. v. Stancliff
Filed 7/18/07 P. v. Stancliff CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, Plaintiff and Respondent, v. LARRY STANCLIFF, Defendant and Appellant. | A115538 (Solano County Super. Ct. No. FCR219856) |
Defendant Larry Stancliff requests that we expedite disposition of his appeal (A115538) and his related habeas petition (A117675).[1] He seeks relief from the superior courts postjudgment custody credits award.
The Attorney General concedes that defendant is entitled to relief on appeal, and agrees that the credit calculation should be set aside with the matter returned to the superior court for reconsideration. Stancliff and the Attorney General agree to waive oral argument and stipulate to the immediate issuance of the remittitur.
Defendant pleaded no contest to five charges of theft by use of an access card (Pen. Code, 484e, subd. (d).) As a part of his plea agreement, defendant was to receive credits from date of hold. At the change of plea hearing held on October 12, 2005, defendants counsel indicated that defendant had been on a hold since the complaint was filed. The court imposed a five-year sentence at this hearing, reserving jurisdiction on the issue of custody credits pending receipt of a calculation from the probation department.
The probation department calculated that defendant was entitled to 34 days of custody credit only, for the period from September 9, 2005, to October 12, 2005. However, the felony complaint and arrest warrant declaration were filed on November 12, 2004. The probation departments calculation sheet notes that defendant was, at that time, incarcerated in connection with a Sacramento case, and states that defendant might not be entitled to credits if the instant case was not running concurrently with the case in Sacramento.
Penal Code section 1260 provides, in part: The [appellate] court may reverse, affirm, or modify a judgment or order appealed from, . . . and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, . . . remand the cause to the trial court for such further proceedings as may be just under the circumstances.
The trial courts order dated November 15, 2005, regarding defendants custody credit calculation, is set aside.[2] The matter is remanded to the superior court for a recalculation of defendants custody credits in accordance with his plea bargain.
The Clerk of this Court is directed to issue the remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)
__________________________________ Swager, J. | |
We concur: __________________________________ Marchiano, P. J. __________________________________ Stein, J. |
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[1] In light of our disposition, the petition for writ of habeas corpus is moot, and we have denied it by separate order filed this date.
[2] Defendant claims that with a proper calculation of his credits, he could be eligible for release as soon as October 2007. We express no opinion as to the proper amount of custody credits defendant should be awarded.
