P. v. Hatch
Filed 01/29/07 P. v. Hatch CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. MELVIN HATCH, Defendant and Appellant. | A112326 (Solano County Super. Ct. No. FRC 226930) |
Defendant Melvin Hatch was found guilty[1]of petty theft with a prior conviction. (Pen. Code, 484, subd. (a), 666.) Three prison priors alleged pursuant to Penal Code section 667.5, subdivision (b) were found true. He was sentenced to five years in state prison, and this timely appeal followed.[2]His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) After review of the record, we find no error and affirm.
Factual Background
Testimony from witness Eric Kawakami established that defendant entered a Target store in Fairfield on April 28, 2004, and took a cell phone without paying for it, concealing it in his shirt. Kawakami detained defendant outside the store.
Procedural Background
The procedural history of this case is complicated by prior events not a part of the record in the current appeal. According to counsel on appeal, this charge was previously brought against defendant under a different docket number (FCT215817) and defendant was held to answer after a preliminary hearing. A motion pursuant to Penal Code section 995 was granted, however, as it was determined that defendant had been incompetent at the time of the preliminary hearing. The charges were refiled (FRC226930); it is that docket which is the subject of this appeal. On that docket, a new preliminary hearing was conducted and defendant was held to answer on September 27, 2005.[3]
On November 1, 2005, defendant waived his right to jury trial in this matter; he was found guilty of the charged offense and the prison prior allegations were found true. On November 29, 2005, Defendant was sentenced to the midterm of two years and an additional three years were imposed for the prison priors. The court reserve[d] the issue of presentence credits.
Defendant subsequently filed documents alleging that his attorney improperly made a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) with respect to a misdemeanor case that defendant had pending, allegedly leading to the aggravating facts of the misdemeanor case being considered when the court imposed sentence on this matter. Defendant claimed that, but for those aggravating factors, he would have been granted probation in this matter.
He also complained that his presentence credits were improperly set forth in the probation report. His attorney filed a request to correct presentence custody credits, indicating that defendant should be awarded conduct credits for July 11, 2004 to January 23, 2005, before he was transferred to Napa State Hospital, and actual time for January 24 to July 7, 2005, when he was at Napa. On January 4, 2006, the court recalled/vacated the sentence previously imposed, deemed the misdemeanor dismissed without a Harvey waiver, re-referred the matter to the probation department for a new recommendation without reference to that case, and set the matter for resentencing. After a psychological evaluation and consideration of other sentencing options, on April 27, 2006, the court again sentenced defendant to the midterm of two years in state prison, plus three years for his prison priors.
The issue of the appropriate amount presentence credits was discussed. The court initially awarded 947 days of credit, but when defendants attorney objected that the number was too low, the court increased the number to 1047. After defendants attorney indicated that he had mistakenly indicated the 947 figure was too low, the court again corrected the number to 947 days.[4]
Discussion
Defendant was adequately represented by counsel throughout the proceedings and received a fair trial. Sufficient evidence supported the courts finding on the charged offense and the prison prior allegations.[5]No error appears in defendants sentencing. There are no meritorious issues to be argued on appeal.
The judgment is affirmed.
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Sepulveda, J.
We concur:
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Reardon, Acting P.J.
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Rivera, J.
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[1]Defendant waived his right to a jury trial and the case was tried to the court.
[2]Defendant was sentenced to the midterm of two years on the petty theft and three years were added for the prison priors.
[3]The competency proceedings initiated under the prior docket are not a part of this record on appeal.
[4]Counsel on appeal has calculated various amounts of credits that defendant would have been entitled to, depending upon when he was delivered to state prison (which is unclear from the record). Under any of these calculations, however, the most credit that defendant would have been entitled to would be a total of 940 days, which is less than what the trial court ultimately ordered.
[5]The documents introduced to prove the prior convictions are a part of the record on appeal and have been reviewed by this court.
