P. v. Gates
Filed 8/29/14 P. v. Gates 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
JOHNNY
GATES,
Defendant and
Appellant.
C074510
(Super. Ct. No. 12F06398)
Appointed
counsel for defendant Johnny Gates asks this court to review the record and
determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a
of the Department of Corrections and
Rehabilitation fail to reflect the plea bargain provided that “
to run] concurrent and given on the new [
defendant’s claim the plea bargain provided he was to receive custody credits
in the current case for time served in a prior case. After reviewing the record, we affirm the
judgment.
On
October 18,
2009, defendant entered the victim’s home
through a broken dining room window and stole items from the bedroom dresser. Defendant’s fingerprint was found on the
dresser.
Defendant
entered a no contest plea to first degree burglary (Pen. Code, § 459) in exchange
for a four-year state prison term to run concurrently to the term defendant was
serving in case No. 11F03470. The court
sentenced defendant accordingly and awarded a total of 53 days of presentence
custody credit towards the current case.
Defendant
appeals. He did not obtain a
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 filed a supplemental brief addressing the issue of
credits that should have been given as part of the plea bargain. He states the records of the Department
of Corrections and Rehabilitation fail to reflect the plea bargain provided
that “credits from [case No. 11F03470
were to run] concurrent and given on the
new [current] case.†(Italics added.)
The plea bargain
provided that the four-year midterm sentence
in the current case was to run concurrently to the sentence defendant
was serving in case No. 11F03470. When defendant entered his plea, the trial court
commented that “[w]e need to look into the other case and this case a
little bit further to make sure we have the credits fully understood.†Defendant waived referral to the probation
department for a report.
At sentencing,
after the trial court imposed the term and awarded 53 days of credit on the
current case, defense counsel
stated: “If I could just inquire from
madam clerk if there is any further information on the amount of credits he accumulated
on 11F03470.†The clerk had a note
apparently from another clerk but could not read the handwriting and neither
could the trial court. The court
commented, “[I]t’s clear that this is a concurrent sentence with the 11F03470
case. I indicated what credits
[defendant] has for this case. Post
sentencing credits are to be determined by the Department of Corrections.â€
When concurrent
sentences are imposed at the same time,
the general rule is that custody credit is awarded against each case. (People
v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9.) However, “[i]f an offender is in pretrial
detention awaiting trial for two unrelated crimes, he [or she] ordinarily
may receive credit for such custody against only one eventual
sentence. Once the pretrial custody is
credited against the sentence for one of the crimes, it, in effect, becomes
part of the sentence . . . . In such circumstances, the pretrial
custody ceases to be ‘attributable’ to the second crime, thus prohibiting
its being credited against the sentence subsequently imposed for that
crime. [Citation.]†(In re
Marquez (2003) 30 Cal.4th 14, 21.)
Here, the record
reflects the sentences were to run concurrently but does not include any information
concerning the sentence defendant was serving in case No. 11F03470. The record does not support defendant’s claim
the plea bargain provided he was to receive custody credit in the current
case for time served in case No. 11F03470.
Thus, we reject defendant’s contention.
Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The
judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
BLEASE
,
J.
