Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR917814, CR919668.
Banke, J.
Defendant Wesley Wayne Auten appeals from the sentence and judgment after he admitted violating Proposition 36 probations in case Nos. CR 917814 and CR919668. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the order and imposition of sentence. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Auten was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgments imposing sentence.
Background
On or about March 13, 2009, after Auten waived his right to a preliminary hearing, the Lake County District Attorney filed a two-count information in case No. CR917814 charging Auten with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364). On March 16, 2009, Auten executed a plea form and pled guilty to the felony possession count. Prior to accepting the plea, the court inquired of Auten on the record whether he had any questions about the felony plea form; Auten replied he did not. Auten waived his right to a presentence probation report, and the court proceeded to sentence him immediately. In accordance with the plea agreement, the court suspended imposition of sentence and placed Auten on three years of Proposition 36 probation. (Pen. Code, § 1210.1.) The terms of probation included that he: not possess illegal drugs, cooperate with his probation officer in developing an appropriate drug treatment plan, comply with all laws, and perform 80 hours of community service. Four months later, on July 6, 2009, the probation department filed a probation violation notice that Auten had violated each of these conditions.
On July 7, 2009, the Lake County District Attorney filed a two-count complaint in case No. CR919668, charging Auten with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). The complaint further alleged Auten’s prior convictions rendered him presumptively ineligible for probation (Pen. Code, § 1203, subd. (e)(4)).
On September 18, 2009, Auten admitted a drug-related probation violation in case No. CR917814, and the court reinstated his Proposition 36 probation. He also entered a change of plea in the new case, No. CR919668, pleading guilty on the felony possession count. The court suspended imposition of sentence and placed Auten on another three-year Proposition 36 probation under essentially the same terms and conditions. Auten also resolved a number of other cases, receiving concurrent nonprobationary 115-day jail sentences with 115 days of credit in four cases (Nos. CR914010, CR919669-A, CR918542, CR919426A & CR919424), and admitting a probation violation and serving a concurrent 115-day jail sentence with 115 days of credit in another case (No. CR914010).
Three months later, on December 29, 2009, probation filed probation violation notices in case Nos. CR917814 and CR919668. On January 8, 2010, Auten offered to admit probation violations in exchange for dismissal of the new misdemeanor charge, and anticipated doing prison time. This proposal was accepted, and Auten admitted violating his probations by: failing to keep probation apprised of his address; failing to report to his probation officer on numerous occasions; using or possessing methamphetamine and marijuana; and driving on a suspended license. The court referred the matters to probation for a supplemental presentence report and set a sentencing date.
The probation report recommended a state prison sentence of two years eight months: the midterm of two years for the felony possession in case No. CR919668 and eight months, running consecutively, for the felony possession in case No. CR917814. The report recommended 113 days of current custody and conduct credits since his most recent arrest, noting Auten had already received full credit for his previous in-custody time (77 days in these two cases) in disposing of all his other cases on September 18, 2009.
The court imposed the recommended sentence, electing to impose consecutive terms because the offenses had been committed at different times and places. It also awarded 113 days of credits, and imposed $200 restitution fines (Pen. Code, § 1202.4, subd. (b)) and probation revocation fines (Pen. Code, § 1202.44), stayed imposition of $200 parole revocation fines (Pen. Code, § 1202.45), imposed drug program fees (Health & Saf. Code, § 11372.7) of $570 and lab fees (Health & Saf. Code, § 11372.5) of $190, and imposed a $30 court security fee (Pen. Code, § 1465.8) and $30 criminal conviction assessments (Gov. Code, § 70373) in both cases.
Auten filed timely notices of appeal on April 13, 2010.
Discussion
We have reviewed the record and find no arguable issues. Auten was ably represented by counsel at all times. The trial court did not abuse its discretion in refusing to reinstate probation and imposing sentence. Since Auten had already received full credit for the time he was previously in custody on numerous other cases (by agreement between the prosecutor and the defense), he was not entitled to “multiply” that credit yet again by having it added to the credit he received on imposition of sentence in case Nos. CR919668 and CR917814. (See People v. Lathrop (1993) 13 Cal.App.4th 1401, 1405 [first county to sentence after a “hold” by it and another county, must give full custody credit, but defendant will receive no credit upon sentencing by second county to avoid “duplicative” credit].)
Disposition
The judgment imposing sentence is affirmed.
We concur: Marchiano, P. J., Dondero, J.