P. v. Arballo

Filed 5/31/06 P. v. Arballo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

Case No. F98903179-0

On August 12, 1998, appellant, Cameron Lee Arballo, pled no contest in case No. F98903179-0 to two counts of insurance fraud (Pen. Code, § 550, subd. (a)(1)).^[1] He was released on his own recognizance pending sentencing at a much later date.

Case No. F98601134-0

On October 13, 1998, case No. F98601134-0 was filed alleging that Arballo failed to pay child support (§ 271, subd. (a)). Arballo pled no contest on November 29, 2000, to not paying child support.

Case No. F99634311-5

On January 13, 1999, a criminal complaint was filed in case No. F99634311-5, charging Arballo with attempt to defraud (§§ 664 & 532, subd. (a)) and misdemeanor vandalism (§ 594, subd. (b)(3)). On June 6, 1999, an information was filed in case No. F99634311-5, which retained counts one and two from the criminal complaint, but added allegations that Arballo committed conspiracy to defraud (§§ 182 & 532, subd. (a), count three) and conspiracy to vandalize (§§ 182 & 594, subd. (b)(4), count four).

On August 31, 2000, the prosecutor made a motion to amend the information to include an allegation that Arballo committed a felony while on bail (§ 12022.1). That same day, Arballo pled no contest to conspiracy to defraud and committing a felony while on bail.

July 18, 2001, Sentencing

On July 18, 2001, the trial court sentenced Arballo in all three actions to five years of felony probation. Arballo was ordered to pay restitution to the victims of his offenses. The court set forth Arballo's custody credits in each action as follows: case No. F98903179-0, 170 actual days, 85 conduct days, 255 total days; case No. F99634311-5, 48 actual days, 24 conduct days, 72 total days; case No. F98601134-0, 9 actual days, 4 conduct days, 13 total days.

Prison Sentence

After charges were brought in an unrelated action, on October 29, 2003, the court revoked Arballo's probation. On November 30, 2004, the trial court sentenced Arballo in all actions. In case No. F98903179-0, the court sentenced Arballo to prison for three years on count one and to a concurrent term of three years on count seven. In case No. F99634311-5, the court sentenced Arballo to a concurrent term of two years for the on-bail enhancement and a consecutive term of eight months on count three. The court sentenced Arballo to a two-year consecutive term in case No. F98601134-0. Arballo's total prison term is 5 years 8 months.

In case No. F98903179-0 the court found Arballo was entitled to 311 actual custody days and in case No. F99634311-5, 141 actual days. The court awarded 226 custody credit days for a total of 678 days of credits. In case No. F98601134-0, the court found that Arballo's custody credits merged into the 678 days already awarded.

Contention on Appeal

On appeal, Arballo contends that in case No. F99634311-5, the trial court failed to include 48 actual days in custody and 24 credit days which the court had noted Arballo was entitled to receive during the July 18, 2001, sentencing hearing in which Arballo was placed on probation. Arballo argues the trial court erred in failing to award these credits and filed a motion to the trial court on August 23, 2005. The trial court denied Arballo's motion on September 1, 2005.^[2]

DISCUSSION

Appellant contends that he is entitled to an additional number of custody credits, because the trial court failed to include 48 actual days of custody credit appellant had spent in jail in case No. F99634311-5 prior to being placed on probation on July 18, 2001. Respondent replies that appellant cannot show that he was in jail for a different period of time than he was incarcerated in case No. F98903179-0.

In his reply brief, appellant argues that the People have failed to show he is not entitled to the credits in question. Appellant states that he has failed to find a detailed record of the custody credits prior to July 18, 2001. Appellant alternatively requests this case be remanded to the trial court to determine whether the 48 day's actual credits were served at the same time in case Nos. F99634311-5 and F98903179-0.

We agree with appellant that the record of appellant's custody credits prior to July 18, 2001, is ambiguous. Most of the time, clerk's transcript entries of hearings indicate that appellant is released on his own recognizance, but there are occasions when the entries indicate he is in custody.

After carefully reviewing the probation report, we found entries at page 312 that resolve this issue. Appellant was arrested on October 1, 1998, and released on November 17, 1998. At that time, he was in custody according to the probation report in both case Nos. F98903179-0 and F0634311-5.^[3] Though appellant was clearly not arraigned in case No. F99634311-5 until 1999, the arrest report was prepared on September 14, 1998. Appellant had just admitted two counts in case No. F98903179-0 on August 12, 1998, and was released on his own recognizance after changing his plea. Though the probation report is vague as to how and why appellant came to be in custody between October 1, 1998, and November 17, 1998, it clearly sets forth that appellant was in custody for both case Nos. F98903179-0 and F99634311-5.

Because appellant had not yet been arraigned in case No. F99634311-5, it is possible that the probation officer's reference to appellant being entitled to custody credit of 48 days is in complete error. If this is so, appellant was never entitled to an additional 48 days of credit. We need not decide, however, whether the probation report has erroneously granted appellant 48 days of actual custody credits. The probation report notes that appellant was in custody at the same time, between October 1, 1998, and November 17, 1998, for case No. F98903179-0 and for case No. F99634311-5. Appellant acknowledges in his reply brief that if he was in custody at the same time for both offenses, he is not entitled to the claimed 48 additional actual custody credit days plus additional conduct credit days.

The burden is on the accused to establish entitlement to presentence custody credit. Where â€