P. v. Bibbs
Filed 10/18/13 P. v. Bibbs
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NOT
TO BE PUBLISHED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
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(San Joaquin)
THE PEOPLE,
Plaintiff
and Respondent,
v.
TOMMY LEE BIBBS,
Defendant
and Appellant.
C069559
(Super.
Ct. No. SF116945A)
guilty of:
a motor vehicle with willful or wanton disregard for the safety of persons or
property
(count 1; Veh. Code, § 2800.2); failing to
stop at the scene of an accident with property damage (count 4; V
under the influence (DUI) of alcohol and/or drugs (count 5; V
while under the influence of amphetamine (count 6; H
(a)). The jury also found defendant
guilty of the lesser charge in count 3 of vandalism of property valued under
$400, a misdemeanor.
Defendant
argues that his 180-day sentence for failing to stop at the scene of an
accident should have been stayed pursuant to Penal
Code section 654, that $160 in fines and fees must be stricken because the
court did not detail them in its oral pronouncement of sentence, and that he
was entitled to an additional day of
and 88 additional days of conduct credit.
We
shall conclude that defendant’s section
654 argument is moot because the length of the sentence on count 4 was less
that defendant’s presentence credit, that the court included all fees and fines
in its oral pronouncement, but that defendant is entitled to additional
presentence credit. We shall order to
trial court to modify defendant’s presentence credits, but shall otherwise
affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Deputy
Michael Powell of the
Joaquin County
Sheriff’s Office was called to a home on West Highway 4 on a report of a
suspicious white station wagon parked in the driveway. On the way to the house, he saw a vehicle
matching the description he had been given parked on the side of John
Turk Road,
just north of Highway 4. He passed the
car then made a U-turn to pull up to it.
As he did so, the car took off.
Deputy Powell was able to identify defendant as the driver of the
station wagon. Emuna Mohammed was
sitting in the passenger seat of the station wagon.
Deputy Powell followed defendant with his flashing lights
and siren on. Defendant was travelling
around 90 miles per hour. The speed
limit was 50 or 55 and there was other traffic in the area. Defendant passed a car on the right that he
had been tailgating. That car moved to
the right to avoid defendant, and an accident almost resulted. Defendant also ran a red light. There were other vehicles in the
intersection, but there was no collision.
Defendant continued on at a high rate of speed.
Deputy Powell called off the pursuit about a half-mile
from Interstate 5 because there was no felony want on the vehicle, so there was
not enough reason to continue the pursuit.
Powell proceeded on to the homeowners who had called in the report of
the suspicious vehicle. While there,
Powell learned that defendant had been apprehended.
Defendant had crashed through a wrought iron fence and
hit a pickup that had been parked in a driveway, pushing the pickup into the
garage door. Deputy Powell proceeded to
the scene of the crash. He saw defendant
in the backseat of a California Highway Patrol vehicle. Powell interviewed Emuna Mohammed. She told Powell that defendant had been
driving the car and that he was her boyfriend.
Powell did not detect any odor of alcohol from Mohammed, and she showed
no signs of being under the influence of alcohol.
Before the crash, Highway Patrol Officer Jackson Seymour
spotted defendant in the white station wagon.
He saw defendant run a red light and followed defendant onto the
freeway, but did not turn on his lights and siren until defendant exited the
freeway. Officer Seymour followed
defendant with his lights and siren activated.
He saw defendant collide with a fence and parked pickup truck. By the time he reached the white station
wagon, the driver’s door was open and Mohammed was sitting alone in the front
seat smoking a cigarette. She told
Officer Seymour that she had told defendant to stop. She gave defendant’s name and date of birth
as well as a physical description and a description of his clothing. Officer Seymour detected no odor of alcohol
on Mohammed’s breath, nor did she exhibit symptoms of intoxication. She told Officer Seymour that defendant had
been using drugs. Seymour searched the
vehicle, and found defendant’s driver’s license on the driver floorboard.
Defendant was running away on foot when he was
located. He was detained, arrested, and
taken to a hospital. He was gaunt and
had dilated pupils. He was jittery and
babbling nonsense. A sample of his blood
was tested and revealed methamphetamine at 300 nanograms per milliliter and
amphetamine at 51 nanograms per milliliter.
This was a sufficient amount to impair one’s ability to drive safely.
At trial Mohammed testified that defendant was her boyfriend,
that she loved him, and thought she might marry him. She further testified that, despite what she
told the officers the night of the crash, defendant had not been driving. Instead, it had been someone named Joey
Johnson. She did not know where Johnson
lived. She looked for Johnson after the
crash, but never found him. She claimed
she was confused about the details of the night because she had been drinking. She claimed she did not remember telling the
police that defendant had been driving the car, but if she did so it was
because she was mad at defendant. She
was mad at him because the day before he had trashed her car and slashed her
tires and tampered with the wiring (the basis of the vandalism count).
DISCUSSION
I
P
The trial court sentenced defendant to two years and
eight months in prison for the felony evading an officer conviction, and
imposed a concurrent six month (180 day)
sentence for count 4 (hit and run driving with property damage). The trial court awarded 253 days credit for
time served. We shall conclude below
that defendant is entitled to 380 days of total credit.
Defendant argues that the hit and run was incidental to
the felony evading conviction, and that the two counts were committed with the
same criminal intent and objective, which was to flee from police. He argues that section 654 and the double
jeopardy clause of the Fifth Amendment to
the
States
Constitution forbid multiple punishment in this instance.
Defendant served no sentence for the hit and run
conviction after sentencing, since the court gave him credit for time served
that was in excess of 180 days.
Accordingly, there is no effective relief that can be afforded on appeal
and the issue is moot. (See
v. Travis (2006) 139 Cal.App.4th 1271, 1280.)
II
Fines and Fees
Defendant argues for the first time on appeal that
because the trial court did not orally impose $160 worth of fines, they must be
stricken. He argues he did not forfeit
the argument because he had no way of knowing the fines were being imposed,
since they were not mentioned in the oral pronouncement. He is wrong.
The fines were included in the trial court’s oral pronouncement, as well
as in its minute order, and he forfeited any objection to them by failing to
object below.
The oral pronouncement of fines and fees detailed $220
for a restitution fine, $220 for a parole revocation fine, and “$3,220 in fines
and fees on the DUI offense.†The total
amount of fines and fees stated orally by the court was $3660.
The minute order detailed the following fees and
fines: $220 restitution fine, $220
parole revocation fine, $150 conviction assessment, $200 security fee, $190
criminal lab fee, $38 law enforcement fine, $12 medical air transportation fee,
$100 restitution fine plus $10 surcharge, $2520 penalty assessment as to count
5. The total amount of these fines and
fees is $3660. Defendant contests the
$38 law enforcement fine, the $12 medical air transportation fee, and the $100
restitution fine plus $10 surcharge.
There is no discrepancy in the total amount. Aside from the restitution and parole
revocation fines, the oral pronouncement included all remaining fines and fees
in one total. It is an acceptable
practice for the trial court to refer to fines and fees in a shorthand manner
and leave it to the trial court clerk to specify the penalties in appropriate
amounts in the minutes and the abstract.
(People
v. Sharret (2011) 191 Cal.App.4th 859, 864.) The amounts defendant contests were itemized
in the abstract of judgment, therefore the trial court complied with our
decision in P
1192, 1200.
There was no failure on the trial court’s part to orally
pronounce all of the fines and fees.
Defendant’s complaint of error on this ground is also forfeited for
failure to object. (People v. Gibson (1994) 27
Cal.App.4th 1466, 1468-1469.)
III
Credit for Time Served
The trial court awarded defendant 253 days for time
served, plus 38 days of conduct credits, for a total of 291 days. The trial court applied the 15 percent
conduct credit limitation pursuant to section 2933.1, which applies such limitations
for violent felonies listed in section 667.5, subdivision (c). The crimes of which defendant was convicted
are not listed in section 667.5,
subdivision (c). Defendant argues he was
entitled to conduct credit at a rate of two days for every four-day period of
actual custody under the version of section 4019 as amended effective January
25, 2010. The People concede this to be
correct, and we accept the concession.
This will change defendant’s conduct credits from 38 days to 126 days.
Defendant also argues he was entitled to an additional
day of actual custody credit because the record indicated he was taken into
custody on February 15, 2011, rather than February 16, 2011 as stated in his
probation report. The record indicates
defendant was taken into custody on February 15, 2011, but the record is silent
as to when he was actually booked into jail.
The People have no objection to modifying the abstract of judgment to
reflect an additional day of presentence custody credit.
DISPOSITION
The case is remanded to the trial court with directions
to modify the abstract of judgment to state that defendant has earned 254 days
of actual custody credits and 126 days of conduct credits for a total of 380
days of presentence credit. The trial
court is directed to forward the modified abstract to the
Rehabilitation. The judgment as modified is affirmed.
BLEASE , Acting
P. J.
We concur:
MURRAY , J.
DUARTE , J.
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