P. v. Demontmollin

 

 

 

 

 

 

 

 

 

Filed 8/7/13  P. v. Demontmollin CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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>

THIRD APPELLATE DISTRICT

(El
Dorado)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   GREGORY SCOTT DEMONTMOLLIN,                           Defendant and Appellant.

C072112   (Super. Ct. No. P10CRF0282)

 

            name="_BA_ScanRange_Temp_All">Defendant Gregory Scott
Demontmollin appeals from an order after judgment denying his href="http://www.fearnotlaw.com/">motion to correct
the abstract of judgment.  This is an
appeal pursuant to Pname="_BA_Cite_9A0FBC_000013">eople v. Wende (1979) 25 Cal.3d 436
(Wende).

            In
May 2011, following his no contest pleas, defendant was sentenced to state
prison for a stipulated aggregate term of three years for href="http://www.mcmillanlaw.com/">second degree robbery
(Pen. Code, § 211), felony evading (Vname="_BA_Cite_9A0FBC_000023">eh. Code, § 2800.2, subd. (a)) and a
prior prison term (Pen. Code,
§ 667.5, subd. (b)).  The trial
court did not award any presentence custody credits.  Probation reported that defendant was not
entitled to credits because his time in custody was due to a parole violation
(absconding). 

            In
September 2012, defendant filed a motion and requested presentence custody
credits, claiming his custody was related to the current offenses and that the
parole violation was never fully adjudicated. 
He attached various documents, including the trial court’s order denying
his petition for a writ
of habeas corpus,
finding that he was not entitled to dual credits in that “the records produced
show that a warrant was issued for his arrest as a parolee at large and his
subsequent violation was also based, at least in part, on that charge.”  Defendant also attached a prison report,
recounting the facts underlying the robbery and evading offenses as well as a
charge of absconding parole supervision. 
The report reflects that after defendant successfully evaded the
pursuing sheriff’s deputies on July 13, 2010,
the deputies contacted defendant’s parole agent.  After the parole agent was unable to contact
defendant at his residence, the agent requested a warrant for defendant as a
parolee at large.  Defendant’s parole was
suspended effective July 19, 2010.  “His whereabouts were unknown until his
arrest” on July
29, 2010. 

            On September 10, 2012,
the trial court denied defendant’s motion for presentence href="http://www.mcmillanlaw.com/">custody credits.  Defendant timely appeals. 

            We
appointed counsel
to represent
defendant on appeal.  Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any arguable issues on
appeal.  (Wende, supra, 25 Cal.3d
436.)  Defendant was advised by counsel
of the right to file a supplemental brief within 30 days of the date of filing
of the opening brief. 

            Defendant
filed a supplemental
letter brief.  He requests that this court order the trial
court to award the credits, arguing that Pname="_BA_Cite_9A0FBC_000015">eople v. Bruner (1995) 9 Cal.4th
1178 (Bruner) does not apply
“simpl[y] because the court and parole agents chose to separate the crimes
committed during that course of conduct.” 
We reject his claim.

            “[W]here
a period of presentence custody stems from multiple, unrelated incidents of
misconduct, such custody may not be credited against a subsequent formal term
of incarceration if the prisoner has not shown that the conduct which underlies
the term to be credited was also a ‘but for’ cause of the earlier
restraint.  Accordingly, when one seeks
credit upon a criminal sentence for presentence time already served and
credited on a parole or probation revocation term, he cannot prevail simply by
demonstrating that the misconduct which led to his conviction and sentence was
‘a’ basis for the revocation matter as well.” 
(Bruner, supra, 9 Cal.4th at pp. 1193-1194.)

            Defendant’s
offenses of robbery and evading on July 13, 2010, and his absconding from
parole between July 19, 2010 and July 29, 2010 (when he was arrested), are
“unrelated incidents of misconduct” within the meaning of Bruner, supra,
9 Cal.4th at page 1193.  Defendant
is not entitled to the credit for time served and credited on the parole
revocation term. 

            Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.

DISPOSITION

            The
judgment (order) is affirmed.name="_BA_ScanRange_Skip_PostScanRange_999999">name="_BA_Bookmark_Subrange_9A0FBC_0001">

 

 

                                                                                                        BUTZ                              , J.

 

 

We concur:

 

 

 

                    RAYE                             , P. J.

 

 

 

                    HULL                             , J.