P. v. Rampone
Filed 6/24/08 P. v. Rampone CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. CARY W. RAMPONE, Defendant and Appellant. | A121148 (Solano County Super. Ct. No. VCR-178983) |
Cary W. Rampone appeals from a finding that he violated the terms of his probation and the execution of a previously-imposed state prison sentence. His court-appointed counsel has filed a brief raising no legal issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTS AND PROCEEDINGS BELOW
On June 6, 2005, appellant was at arrested at his home on a parole warrant. Search by the arresting officer disclosed 3 grams of methamphetamine in a plastic baggie in his pocket. A search of appellants residence revealed two methamphetamine pipes, two pocket knives, and a counterfeit $20 bill.
A complaint filed two days later charged appellant with possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), a misdemeanor possession of a smoking device (id., 11364), and alleged numerous prison term enhancements (Pen. Code, 667.5, subd. (b)) relating to convictions sustained between 1985 and 2003. Due to the number of prior convictions, appellant was statutorily ineligible for probation absent unusual circumstances. (Pen. Code, 1203, subd. (e)(4).) However, based on the belief that appellants most recent crime was committed because of a mental condition, namely substance abuse, not amounting to a defense, the probation department felt there is a high likelihood [appellant] would respond favorably to treatment that would be required [as] a condition of probation. The report notes that appellant was previously assessed as extremely marginal for a residential treatment program, as he has had six separate CDC commitments and he has not utilized parole services to address his substance abuse issues. Nevertheless, given the fact that he has been accepted into Delancey Street, a guarded recommendation for Probation in conjunction with participation and completion of a Category 1 program is submitted. It is further recommended that the defendant waive all credits and zero tolerance be reflected in the minute order. The district attorney never contested the recommendation and the trial court accepted it.
On June 16, 2005, appellant executed a written plea waiver and entered a no contest plea to the possession of methamphetamine offense and admitted one prior prison enhancement. Pursuant to the negotiated plea, the court imposed a four-year state prison term, the execution of which was suspended, and placed appellant on formal probation for a period of three years, on numerous terms and conditions, including that appellant shall commit to Category 1 residential program to remain there until released by the director upon satisfactory completion, and that appellant waived all of the presentence credits he was allowed (which totaled 157 days), as well as credit for time spent in a residential treatment program. Probation was, of course, granted also on the conditions that appellant totally abstain from the use of alcohol and illegal drugs and that he submit to alcohol or drug testing at any time requested by a peace officer, probation officer, or residential program representative.
Appellant entered the Delancey Street program on September 7, 2005. However, a representative of the program notified the probation department on July 13, 2007 that appellant had absconded a day earlier, prior to successful completion of the program. On July 16, 2007, the court revoked probation and issued a bench warrant.
On February 21, 2008, after appellant admitted he had violated probation, the court refused to reinstate him to probation, lifted the stay on the unexecuted term, and ordered that he begin serving the four-year sentence. The court awarded appellant credit of 168 days for time served and good time credits of 84 days, for total credits of 252 days. The court imposed the previously-stayed restitution fine of $200, and an additional parole revocation restitution fine in the same amount (Pen. Code, 1202, subd. (b), 1202.45) as well as various other statutorily mandated fees.
Notice of this appeal was timely filed on March 21, 2008. Appellant filed a request for a certificate of probable cause indicating that he wanted to challenge the denial of credit for the 22-1/2 months he spent in the Delancey Street program. The court granted a certificate of probable cause on April 2, 2008. An appeal such as this, which is from a judgment after an admission of probation violation and raises a ground that arose after entry of the plea, is appealable. (Cal. Rules of Ct., rule 8.304(b).)
DISCUSSION
In hisrequest for a certificate of probable cause, appellant stated in his own handwriting as follows: I am only trying to get the credits that I was denied. The part about me waiving pre-sentenced [sic] credits I understood. But waiving 22-1/2 months [for time served in the Delancey Street program] was in no way explained to me. How could you waive time I did not have yet[?]
On August 26, 2005, after it imposed the four-year prison term and described the presentence credits it awarded appellant, the court stated as follows: The defendant is to commit himself to a Category 1 residential program, to remain in there until released by the director, upon satisfactory completion. He will remain in custody and be placed in the program. He can be placed in a program as soon as space is available. And Probation can transport him to that program. [] The defendant, its my understanding, is waiving all pre-sentence credits and time in the program if he fails to complete it. Is that agreed? Appellant, who was accompanied by counsel, personally responded, Yes, it is.
After appellant admitted violation of probation, the previously suspended four-year sentence was ordered executed at a hearing on February 21, 2008. The hearing commenced with the following colloquy between the trial judge and appellants counsel, Deputy Public Defender Kenneth Lee:
MR. LEE: [Appellant] understands that the reinstatement [of the waived program credit] could be, quite frankly, a long shot, but he is interested in discussing with the Court the reinstatement of his credits. He did essentially complete Delancey Street.
THE COURT: Well, he didnt complete it.
MR. LEE: Thats why I used the word essentially. He was in the aftercare. Hed been in [Delancey Street] for 21 or 22 months.
THE COURT: Did he waive credits?
MR. LEE: Yes, he did.
THE COURT: Okay. So what is your point?
MR. LEE: He would like to ask the Court to consider reinstating part of those credits.
THE COURT: I dont think Ill do that.
At the close of the hearing, after the court and counsel calculated the amount of presentence and other custodial credit the court agreed to award appellant, defense counsel returned to the subject of the waived program credit, stating again: I ask the Court to at least take into consideration that he did make it through 21 months [at Delancey Street]; that hes not here on a new crime, so to speak; that he did not apparently fall back into this lifestyle, although there was this positive [drug] test. And if the Court could fashion some break or some consideration in regard to that. After the court said Okay. Submitted? and counsel said Yes, the court declined to reinstate the waived program credit. At the close of the hearing, the court asked appellant whether he had anything further to say and appellant answered No.
The foregoing portions of the sentenced hearings clearly indicate that, notwithstanding his contrary representation in his request for a certificate for probable cause, appellant clearly understood at the sentencing hearing that he would not receive any credit for the time he spent in the Delancey Street program if, as was the case, he failed to successfully complete that program. Appellant unquestionably made a knowing and voluntary waiver of the right to an award of such credit.
During the periods of time his plea and sentence were negotiated, appellant was represented by able counsel. The court fully informed appellant of the consequences of his plea and all of the rights he would be giving up by his plea before it was entered, and the record satisfactorily shows appellants plea and waiver of rights were fully informed and freely made.
There was no sentencing error.
There are no legal issues that require further briefing.
The judgment and sentence imposed are affirmed.
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Kline, P.J.
We concur:
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Haerle, J.
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Lambden, J.
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