P. v. Taddicken

Filed 9/05/06 P. v. Taddicken CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant Michael Raymond Taddicken is serving a prison term. His only claim on appeal is that the trial court failed to give him credit against his prison term for time he served and for which he received credit in a separate misdemeanor case. We affirm.

BACKGROUND

Defendant was arrested on August 18, 2002, after he was seen tampering with some vehicles and found to have marijuana in his pocket. He provided the officers with his brother's name, instead of his own. Defendant was charged in Yolo County case No. CRF025063 (No. 025063) with false impersonation (Pen. Code, § 529, subd. (3); further undesignated statutory references are to this code), two counts of tampering with a vehicle (Veh. Code, § 10852) and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)).

Defendant remained in custody until he was released on his own recognizance on September 20, 2002. Defendant, however, failed to appear for his arraignment on September 26, 2002, and a bench warrant was issued for his arrest. The warrant was served on defendant on July 11, 2003.

Defendant was arraigned on the information in Yolo County case No. CRF025063 (No. 025063) on July 14, 2003. Defendant entered pleas of not guilty and was remanded to the county jail.

The district attorney filed a complaint on July 24, 2003, in case No. 034512, charging defendant with failure to appear on a felony charge while released from custody on his own recognizance (§ 1320, subd. (b)), based on defendant's failure to appear in case No. 025063. The district attorney also alleged an on-bail enhancement in connection with the charge. (§ 12022.1, subd. (b).)

On November 17, 2003, defendant pled no contest to false impersonation in case No. 025063 and the remaining counts were dismissed. The trial court reduced the failure to appear charge in case No. 034512 to a misdemeanor and dismissed the associated enhancement and defendant pled no contest to misdemeanor failure to appear.

Defendant was sentenced on both cases on March 15, 2004. The trial court imposed a two-year prison term on the felony count in case No. 025063, stayed execution of sentence and placed defendant on probation. As a condition of probation, defendant was ordered to serve 210 days in county jail, with credit for 62 days (42 actual days from August 18, 2002, to September 20, 2002, and from March 8, 2004, to March 15, 2004, plus 20 days conduct credit). Defendant was also ordered to complete a residential treatment program, during which defendant agreed to waive time credits.

The trial court sentenced defendant to 360 days in county jail on the misdemeanor count in case No. 034512, with credit for 360 days (240 actual days from July 11, 2003, to March 7, 2004, plus 120 days conduct credit). His sentence was, therefore, deemed served.

Defendant remained in custody until transported to the residential treatment program on April 29, 2004. Defendant, however, walked away from the program a few days later on May 4, 2004. A petition to revoke defendant's probation was filed May 21, 2004, and his probation was summarily revoked.

Defendant was eventually located at the Department of Corrections and Rehabilitation, serving concurrent 16-month terms for second degree burglary and vehicle theft from a San Joaquin County case. Yolo County issued a removal order on February 4, 2005, and defendant was arraigned on the probation revocation petition.

At the March 7, 2005, disposition and credits hearing, defendant admitted violating his probation in case No. 025063 by leaving the residential treatment program. The trial court ordered defendant to serve his previously suspended two-year prison term, deemed that term the principal term, and ran the San Joaquin County one-third midterms concurrently.

Over defense counsel's objection, the trial court refused to award defendant custody credits against his prison term in case No. 025063 for the 360 days (240 actual days from July 11, 2003, to March 7, 2004, plus 120 days conduct credit) already credited toward his misdemeanor failure to appear conviction in case No. 034512. Instead, the trial court awarded defendant the 62 days (42 actual days from August 18, 2002, to September 20, 2002, and from March 8, 2004, to March 15, 2004, plus 20 days conduct credit) it had originally credited when it placed defendant on probation, and an additional 67 days (45 actual days from March 16, 2004, to April 29, 2004, plus 22 days conduct credit).

DISCUSSION

I

As an initial matter, we note that defendant's March 30, 2005 notice of appeal purports to appeal from the judgments in both case No. 025063 (the felony) and case No. 034512 (the misdemeanor). Case No. 034512 (the misdemeanor case), however, is not properly before this court. Defendant's notice of appeal states he is appealing from the judgment and sentence entered on March 7, 2005 -- the date he was sentenced in the felony case. The trial court sentenced defendant in the misdemeanor case on March 15, 2004. No orders or judgments were entered in the misdemeanor case on March 7, 2005. Moreover, the March 15, 2004 judgment in the misdemeanor case was long since final at the time defendant filed his March 30, 2005 appeal. Thus, defendant's appeal is not effective with respect to the misdemeanor case. (Cal. Rules of Court, rules 30(a)(4), 30.1(a).) Accordingly, defendant's appeal in case No. 034512 is dismissed.

II

Defendant contends that, since the trial court did not specify on March 15, 2004, that his misdemeanor sentence and felony sentence were to run consecutively, the sentences are concurrent and he is entitled to receive credit against his felony sentence for the time that was previously credited to his misdemeanor sentence. He relies on section 669 to support his position.

Section 669 provides: â€