P. v. Reid

Filed 8/6/09 P. v. Reid CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

J.L. had a restraining order against appellant, Michael L. Reid, the father of her son. On May 19, 2008, Reid left several messages on J.L.s mothers cell phone. During one message, Reid stated that J.L. was messing with his son and his life, and he was going to do something about it. Sheriff deputies responded to a call from J.L that Reid violated a restraining order and arrested Reid a short time later at a restaurant. The arresting officers found a small saw with a wooden handle in a backpack Reid was carrying.

On June 20, 2008, the district attorney filed an information charging Reid with felony making criminal threats (Pen. Code, 422), felony possession of an unlawful weapon (Pen. Code, 12020, subd. (a)), and misdemeanor stalking (Pen. Code, 646.9, subd. (a)).

On August 15, 2008, the court ordered an examination of Reid to determine his competency to stand trial.

On September 5, 2008, the court found Reid competent to stand trial.

On September 30, 2008, the prosecutor amended count 1 to misdemeanor making criminal threats. Reid pled no contest to that charge and the possession of an illegal weapon count in exchange for the dismissal of the remaining count and a lid of two years.

On October 28, 2008, the court sentenced Reid to the middle term of two years on his possession of an illegal weapon conviction and a concurrent term of 180 days on his criminal threats conviction.

Reids appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Reid has not responded to this courts invitation to submit additional briefing. However, our review of the record disclosed that the court erred in its award of presentence custody credit. The probation report indicates that Reid was in actual custody in this matter from May 20, 2008, through the date of his sentencing on October 28, 2008. The court awarded Reid 242 days of presentence custody credit for this period consisting of 162 days of actual custody credit and 80 days of presentence conduct credit. However, Reids preliminary hearing was held on June 20, 2008. At the conclusion of the hearing, in addition to binding Reid on the charges in the instant case, the court terminated Reids probation in case Nos. 60066, 51656, and 56950. The court also ordered Reid to serve 343 days in case No. 60066, a consecutive 119 days in case No. 31656, and a concurrent 349 days in case No. 56950. In In re Rojas (1979) 23 Cal.3d 152, the Supreme Court held that a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration. (Id. at p. 156.)! In accord with Rojas, we conclude that Reid was not entitled to presentence custody credit against the sentence imposed in the instant case for time he served in custody after June 20, 2008, because after that date he was serving a sentence on the other cases noted above. Moreover, based on the 32 days he spent in custody in this case from the date of his arrest on May 19, 2008, through the date of his preliminary hearing on June 20, 2008, when he was ordered to begin serving a sentence on three other cases, Reid was entitled to a total of 48 days of presentence custody credit (32 days/4 = 8 days; 8 days x 2 = 16 days; 32 days + 16 days = 48 days).

Further, following independent review of the record we find that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is modified to reduce Reids award of presentence custody credit from 242 days to 48 days as calculated above. The trial court is directed to file an amended abstract of judgment that incorporates this modification and to send a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

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^*Before Cornell, Acting P.J., Gomes, J., and Hill, J.