P. v. Spoonmore
Filed 1/31/14 P. v. Spoonmore 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NOT TO BE
PUBLISHED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 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
RICHARD
LEE SPOONMORE,
Defendant and
Appellant.
C074458
(Super. Ct. No. CRF13-2094)
This
case comes to us pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende). Having reviewed the record as required by
Spoonmore[1] is entitled to presentence credit and shall affirm the judgment as
modified. We provide the following brief
description of the facts and procedural history
of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
On
May 22,
2013, officers from the West Sacramento
Police Department contacted defendant in response to a report of a subject
walking around in an agitated state.[2] Upon performing a records check on defendant,
the officers determined that he was required to register pursuant to Penal Code section 290 et seq.[3] Defendant had last
registered with the Eureka Police Department in May 2012 and he had not
registered at his West Sacramento residence of four to five months.
In April 1988 in South Dakota, defendant had been committed to an
indeterminate term for first degree rape.
Defendant
pleaded no contest to failure to update sex offender registration after change
of address (§ 290.013, subd. (a)) and admitted the South Dakota prior
serious felony conviction (§§ 667, subds. (b)-(i), 1170.12).
Defendant
requested immediate sentencing. Thus, on
July 9, 2013, he was committed to state prison for a stipulated upper term of
three years, doubled for the prior strike, for a total of six years, and was
ordered to pay a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a
$300 restitution fine suspended unless parole
is revoked (id., § 1202.45), a
$40 court operations fee (id.,
§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code,
§ 70373). In lieu of awarding
presentence credits, the trial court ordered the probation department to prepare a credits
memo.
Defendant
appealed on August
7, 2013; a certificate of probable cause
was denied without prejudice on August 8, 2013. (§ 1237.5.) On September 3, 2013, defendant filed a second notice of appeal and requested a
certificate of probable cause, which was granted the same day.
WENDE REVIEW
We
appointed counsel to represent defendant on appeal. Counsel made a nonappearance motion asking
the trial court to award presentence credits pursuant to section 2900.5,
subdivision (d). In response, the Yolo
County Superior Court Appeals Clerk filed a declaration asserting that the
credits memo (postsentence probation report) is submitted along
with the abstract of judgment to the Department of Corrections and
Rehabilitation; it is not the court’s policy to amend the minute order or
abstract of judgment after postsentence reports are delivered.
Counsel
filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues
on appeal. (Wende, supra, 25 Cal.3d
436.) 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 brief contending that counsel had “made clear to [him]
that the current conviction can not be enhanced from [the] prior 1988 case,”
evidently because the prior conviction is not a “strike” but “only [a] prior
felony.” Thus, defendant claims his
prison sentence should be three years, not six; and his postsentence custody
credits should not be limited to 20 percent.
But
as part of the plea, defendant stipulated that the 1988 prior was a strike that
would “double[] any sentence” and limit his postsentence credits to 20
percent. The parties agreed that, in
exchange for the plea and stipulation, another strike allegation from a 1998
prior conviction would be dismissed. By
entering the plea, defendant avoided the prospect of being sent to prison for
life. Counsel could have realized that
any infirmity in the 1988
strike prior would not have aided defendant because, if the plea and dismissal
were set aside, the 1998 strike prior would remain available to support a
doubled sentence. Defendant’s claim is
more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267.)
Our
review indicates that defendant is entitled to presentence credit. The postsentence probation report indicates
that defendant was in presentence custody from May 23, 2013, through sentencing on July 9, 2013, a period of 48 days. The
report indicates that, pursuant to the current version of section 4019,
defendant is entitled to 48 days of conduct credit.[4] We shall modify the judgment to award
defendant these presentence credits.
Having
undertaken an examination of the entire record, we find no other arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The
judgment is modified to award defendant 48 days of custody credit and 48 days
of conduct credit, for a total of 96 days of presentence credit. As so modified, the judgment is
affirmed. The trial court is directed to
prepare an amended abstract of judgment that includes defendant’s middle name,
Lee, and to forward a certified copy to the Department of Corrections and
Rehabilitation.
BUTZ ,
Acting P. J.
We concur:
MAURO , J.
HOCH , J.
[1] We note the record
identifies defendant’s middle name as Lee, and direct the trial court to
correct the abstract to include same.
[2] Because the matter was
resolved by plea, our statement of facts is taken from the probation officer’s
report.
