P. v. Negrette
Filed 10/23/12 P. v. Negrette CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
ANGEL
RAY NEGRETE,
Defendant and Appellant.
E054591
(Super.Ct.No. RIF10003393)
OPINION
APPEAL from the Superior
Court
of
Riverside
County. Michael B.
Donner, Judge. Affirmed with directions.
Lewis A. Wenzell, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
A. Natasha Cortina and Heather M. Clark, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Angel Ray
Negrete was convicted of commercial
burglary and petty theft. (Pen.
Code, §§ 459, 488.)
name="_ftnref1" title="">[1] The trial court found true that defendant had
served three prior prison terms within the meaning of section 667.5,
subdivision (b). Defendant was sentenced
to a total term of six years in state prison, which included 60 days in county
jail for the petty theft (count 1) to run concurrently with the base term for
the burglary (count 2). Defendant also
received a total of 136 days of presentence credit pursuant to section 4019—68
actual and 68 conduct.
Following sentencing, defendant filed a petition for
order granting presentence custody and conduct credits on a partially
preprinted form. In the handwritten
portion of the petition, defendant stated that he was arrested and released on
bail on July 23, 2010 (one day of custody).
Defendant also indicated that on August 2, 2010, a parole hold was
placed on him, and the record shows he was received at California Institute for
Men on August 4. It also appears that a
revocation hearing was held on August 18 with a result that he was ordered
returned to custody for an eight-month term.
The petition did not expressly include the claim now
made—that the parole revocation was based on the same conduct as the criminal
case and no other. It included only the somewhat ambiguous
statement, “Parole Revocation Arrest for Case No. RIF10003393,†which is
the instant case. There is no supporting
documentation for this claim; the only prison documentation in the clerk’s transcript
reflects that a hold was placed and a revocation term imposed.
On this appeal, defendant argues that the concurrent term
for petty theft was improperly imposed, and should be stayed under section 654,
and that he is entitled to additional presentence credits based upon time
served related to the parole revocation proceedings. The Attorney General concedes the section 654
issue, and we will, to that extent, direct the trial court to stay the
term. With respect to the claim for
additional credits, we will affirm.
STATEMENT
OF FACTS
Defendant walked into a home improvement store, picked up
a tool kit, and proceeded to leave the store without paying for the tool
kit. An employee spotted him and called
the manager, who attempted to stop defendant.
However, defendant was able to exit the store and get into the passenger
side of a vehicle waiting outside, which was then driven off. After his arrest,
he had gone to the store because he needed money and planned to split the
proceeds with “Wade,†who was the driver of the getaway vehicle.
DISCUSSION
A.
The People agree that the 60-day concurrent term should
have been stayed. Defendant was
sentenced to state prison for
burglary. The same criminal intent informed
both the burglary and the petty theft, which was its object. Accordingly, section 654 bars separate
punishment for the two offenses. The
proper procedure would have been to stay the sentence for the petty theft. (People
v. Alford (2010) 180 Cal.App.4th 1463, 1468.) We will so direct.
B.
The basic rule governing the award of presentence credit
against a prison term where the defendant has spent custodial time relating to
the conduct underlying the criminal charge was firmly established in
1180, 1193-1194. As the Supreme Court
explained in that case, a defendant is only entitled to credit against a
subsequently imposed prison term if the earlier time in custody was
led to the eventual conviction. (
cause of the earlier confinement. (
Furthermore, it is the defendant who bears the burden of establishing
that the conduct that led to his conviction was the sole reason for his earlier
confinement. (People v. Shabazz (2003) 107 Cal.App.4th 1255, 1259.)
Defendant did not meet this burden in the trial
court. As we have pointed out, his
petition contained nothing more than a claim that the first parole revocation
was based on the criminal conduct at issue in the prosecution. Courts are fully justified in viewing such
uncorroborated claims with skepticism.
(See In re Alvernaz (1992)
2 Cal.4th 924, 938.)
We agree that it is likely defendant’s conduct was “aâ€
cause of the revocation proceedings.
However, we are also aware from experience that inmates are routinely
provided with, or at least have access to, the documents reflecting revocation
proceedings, including the specific charges and findings. In the absence of supporting documentation,
the trial court correctly implicitly found that defendant failed to carry his
burden. Revocation proceedings may be
based upon a parolee’s violation of any of the conditions of parole to which he
is subject (see Cal. Code Regs., tit. 15, § 2616), and these conditions may,
and commonly do, range much farther afield than the criminal law. (See People
v. Stump (2009) 173 Cal.App.4th 1264, 1273 [defendant charged with drunk
driving not entitled to presentence credits based on parole revocation where
his conduct also violated conditions against consuming alcohol and driving a
vehicle without his parole agent’s permission].) Thus, even though we agree that the timing of
the first revocation proceeding suggests a connection with defendant’s criminal
conduct, which resulted in his criminal convictions, we cannot assume he was
revoked solely for that conduct. Where no reason appears why defendant could
not have provided appropriate corroborating documentation to the trial court,
we decline to hold that the trial court was required nevertheless to accept his
bare assertion that the revocation was due only to the criminal conduct.
DISPOSITION
The trial court is directed to
modify defendant’s sentence as follows:
The 60-day concurrent term imposed in count 1 (petty theft) is stayed
pursuant to Penal Code section 654. The
superior court clerk is directed to issue a minute order reflecting the
modification and forward a copy to the Department
of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Defendant’s motion and chronology were not
entirely clear as to which periods he claims should have resulted in additional
credits. However, due to our analysis,
it is not necessary for us to attempt to sort out the details.
