P. v. Boult

Filed 2/20/07  P. v. Boult 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Shasta)

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     Defendant William Edward Boult pled guilty to arson of forest land (Pen. Code, §  451, subd. (c))^[1] and admitted he had served a prior prison term (§  667.5, subd. (b)), with the understanding that a remaining charge and enhancement would be dismissed and defendant would be sentenced to state prison for three years.  The charges stemmed from an incident in which defendant set fire to the median strip on Interstate 5.  At the subsequent sentencing hearing, the trial court denied probation and sentenced defendant in accordance with the plea agreement. 

     Defendant appealed.  

     We appointed counsel to represent defendant on appeal.  Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal.  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 with various attachments that, according to defendant, contain proof of custody credit to which he maintains he is entitled.  The attachments include various documents that are not part of the trial record and, consequently, may not be considered on appeal by this court.^[2]  (People v. Sanders  (1990) 221 Cal.App.3d 350, 362; People v. Thurmond  (1985) 175 Cal.App.3d 865, 874.)  Defendant's attachments also include a letter to this court and a declaration by defendant that, apparently, was not filed in the trial court.  We have considered these as defendant's supplemental brief to the extent defendant sets forth arguments based on the appellate record.  However, we have disregarded factual assertions by defendant that are not supported in the record.  (People v. Young (1978) 85 Cal.App.3d 594, 608.) 

     The gist of defendant's complaint is that he was denied custody credit to which he was entitled.  According to a memorandum from the probation department to the trial court, when defendant was arrested in August 2004 for the current offenses, he also was arrested for a parole violation, for which he received a 12-month sentence.  The parole violation was based on failing to submit a change of address and consuming alcohol, in addition to the new charges.  In November 2005, defendant was arrested in Nevada on a warrant in the current matter as well as a new parole violation for absconding.  Defendant received credit for the days he remained in custody after the parole hold was dropped in February 2006.  Defendant was again arrested in Nevada in April 2006 on a warrant in the current matter and a parole violation for absconding and consuming alcohol.  Defendant's sentence on the parole violation did not expire until after he was sentenced in the current matter.  According to the probation memorandum, all but 24 days of custody time defendant had served had been for parole violations.  The court ordered custody credit as recommended by the probation department. 

     Defendant contends he was improperly denied custody credit beginning from when he was arrested on the underlying charges in August 2004.  However, a defendant is not entitled to presentence custody credit toward a sentence on a new offense for time served on a parole violation unless such custody is solely attributable to the new offense.  (People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.)  Defendant was not entitled to the credit claimed.

     Defendant claims he â€