Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR135442
Banke, J.
Defendant Carlos Preciado entered a plea of no contest to one count of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), and admitted an allegation of a prior strike conviction (§ 667, subds. (b)-(i)). His counsel has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in defendant’s favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares she notified defendant that he could file a supplemental brief raising any issues he wishes to call to this court’s attention. No supplemental brief has been received.
All further statutory references are to the Penal Code unless otherwise indicated.
Upon independent review of the record, we conclude no arguable issues are presented for review and affirm.
Facts
Defendant was convicted in 1995 of violating section 288. In April 2004, he was transferred from prison to Atascadero State Hospital as a mentally disordered offender (MDO) pursuant to sections 2962 and 2970. His commitment was thereafter extended, pursuant to sections 2970 and 2972. He was transferred to Napa State Hospital in June 2005, where he committed the instant offense.
On February 25, 2007, defendant knocked on the door of the nurses’ station and asked to talk to Rigoberto Fino, a Napa State Hospital counselor. When Fino opened the door, defendant yelled, “I’m gonna get you!” Defendant threw the contents of a plastic container, smelling of feces and urine, at Fino. Defendant pushed Fino, and Fino pushed back. During the struggle Fino fell to the floor and suffered injuries to his ankle that would require three surgeries. Defendant told a police officer he wanted to be sent to prison or jail, where he believed he would have better privileges, and intended to attack officers, doctors, and staff again to hasten that outcome.
Based upon this attack, and another incident involving a different victim, the Napa County district attorney filed a complaint charging defendant with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with an enhancement allegation pursuant to section 12022.7, subdivision (a), battery with serious bodily injury (§ 243, subd. (d)), and making criminal threats (§ 422).
Defendant was arrested and booked into the Napa County Department of Corrections on May 3, 2007. He also was subject to a no-bail hold from Atascadero State Hospital based upon his section 2972 commitment.
On June 12, 2007, the court found defendant incompetent to stand trial and committed him to Napa State Hospital or Atascadero State Hospital. On March 18, 2008, the court found defendant had been restored to competency and reinstated criminal proceedings. Two of three examiners also determined defendant was sane when he committed the charged acts.
On February 25, 2009, defendant entered a negotiated plea of no contest to violating section 243, subdivision (d), and admitted a prior strike allegation pursuant to section 667, subdivisions (b)-(i), in exchange for dismissal of the other charges and allegations. The terms included a prison sentence of six years, consisting of the midterm of three years, doubled to six based upon the admission of the prior strike conviction. Defendant signed and initialed a change of plea form waiving his Boykin-Tahl rights and agreed to these terms. The court found defendant freely and voluntarily entered into the plea, and waived his rights.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On March 25, 2009, the court sentenced defendant to a six-year prison term. It also imposed a $20 security fee, a $200 restitution fine, and stayed a $200 parole revocation fine. It reserved jurisdiction to order victim restitution. The court found defendant was subject to the commitment as an MDO during the entire presentence custody period, and therefore awarded no credits.
Analysis
By entering a plea of no contest, defendant admitted the sufficiency of the evidence establishing the crime, and is not entitled to review of any issue that goes to the question of guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea. Therefore, the only issues cognizable on appeal are issues relating to the denial of a motion to suppress or issues relating to matters arising after the plea was entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)
Defendant was competently represented by counsel at all times. The sentence the court imposed was in accordance with the terms of the plea, and the fees and restitution fines also are in accordance with the applicable statutes. (See §§ 1202.4, 1202.45)
Defense counsel identifies one issue she suggests might require further briefing: Did the court err in denying credits pursuant to sections 2900.5 and 4019 for time defendant spent in presentence custody? At sentencing, defendant’s trial counsel raised the issue of presentence custody credits. He argued defendant was entitled to credits for “all actual days” in custody, beginning with the day he was arrested, and also to “conduct” credits for the same period except during suspension of proceedings due to defendant’s incompetence to stand trial. However, trial counsel also recognized his argument was foreclosed by this court’s decision in People v. Callahan (2006) 144 Cal.App.4th 678 (Callahan).
“A defendant is entitled to credit for presentence custody only if he shows the conduct that led to his conviction ‘was the sole reason for his loss of liberty during the presentence period.’ ” (People v. Mendez (2007) 151 Cal.App.4th 861, 864, quoting People v. Bruner (1995) 9 Cal.4th 1178, 1191.) In Callahan, we held the rule statedin Bruner, applies not only when a defendant is already subject to a criminal sentence, but also when the defendant is already subject to loss of liberty as a result of a civil insanity commitment. “The question is not the type of liberty deprivation, but the fact of the liberty deprivation itself. Logically, the key question is whether defendant would have been free if he had sufficient funds to make bail on the new criminal charge. If he would have remained in custody in any case, regardless of the characterization of that custody as criminal or civil, he is simply not entitled to actual custody credit.” (Callahan, supra, 144 Cal.App.4th at p. 686; seealso People v. Mendez, supra, 151 Cal.App.4th at pp. 863-866.)
The trial court therefore correctly denied credits pursuant to section 2900.5. Even when housed by the Napa County Department of Corrections, defendant was subject to a no-bail hold from Atascadero State Hospital based upon the commitment to the Department of Mental Health as an MDO. During the entire period of defendant’s presentence custody defendant would, in any event, have been deprived of his liberty as a result of the commitment as an MDO. Since he would have remained in custody regardless of the pending criminal charges, he was not entitled to actual custody credit. (Callahan, supra, 144 Cal.App.4th at p. 686.)
In Callahan, wealso held the defendant was not entitled to conduct credits pursuant to section 4019, for the period of pretrial custody after he was found to have returned to competence to stand trial because he committed the offense while already subject to an insanity commitment. Therefore, regardless of whether he was housed in the jail or in the state hospital after the filing of the new criminal charges, he was, at all times in the constructive custody of the state hospital pursuant to his insanity commitment. Since the purpose of that commitment is therapeutic, the rationale for conduct credits did not apply. (Callahan, supra,144 Cal.App.4th at p. 687.) Similarly, here, even though defendant was housed for part of the presentence period by the Napa County Department of Corrections, rather than in Atascadero or Napa State Hospital, he at all times remained in the constructive custody of Department of Health under the original source of deprivation of his liberty, i.e., the section 2972 commitment. Therefore, section 4019 does not apply. (Callahan, at p. 687.)
Since the issue with respect to credits is foreclosed by our decision in Callahan, no further briefing is required on that issue. Moreover, the forgoing independent review of the record reveals no other meritorious issues that require further briefing on appeal.
Conclusion
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.