Opinion
E066757
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JEREMY SCOTT WEITZEL, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1400786) OPINION APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a negotiated plea agreement, defendant and appellant Jeremy Scott Weitzel pled no contest to two counts of sale or transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)). In addition, he admitted that he had sustained one prior prison term (Pen. Code, § 667.5, subd. (b)). In return, defendant was sentenced to a stipulated term of six years in state prison with 680 (340 actual, plus 340 conduct) days' credit for time served. Defendant subsequently filed a petition to recalculate his custody credits, claiming he was entitled to an additional 176 days (88 actual, plus 88 conduct). Following a hearing, the trial court denied defendant's petition.
Defendant appeals from the denial of his petition to modify his credits for time served. Appellate counsel has filed a brief summarizing the proceedings and facts and summarily raising the issue of whether defendant is entitled to an additional 176 days of presentence custody credits. We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436, 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California (1967) 386 U.S. 738, 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.) Based on our independent review of the record, we find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer's report. --------
On February 13, 2014, an officer was at a UPS Store in reference to an unrelated investigation when he observed a female, later identified as codefendant Melissa Barrett, walk into the store with a brown cardboard box. Shortly after Barrett entered the store, a male, later identified as codefendant Ryon Sontoski entered the store and approached Barrett at the counter.
While Barrett and Sontoski were conducting their business transaction with the store employee, the officer noticed that they both appeared nervous and were continually moving and looking around. After Sontoski and Barrett left the store, the officer followed them and noted the license plate number of the vehicle they entered. A records check revealed the vehicle was registered to Danielle Taylor in the city of Upland. The officer also examined the package, and based on his training and experience, believed it contained narcotics, seized it, and took it to the Ontario Police Department. A narcotics trained K-9 sniffed the package and alerted on the parcel indicating there was a controlled substance in the package.
After the officer obtained a search warrant to remove the contents of the package, the officer found two large candles wrapped in purple and clear gift wrapping. Upon further examination, the officer located a clear plastic sealed bag containing psilocybin mushrooms inside one of the candles and a clear plastic sealed bag containing 4.30 ounces of methamphetamine inside the other candle. The officer conducted further investigation and determined Barrett, Sontoski, and Taylor were directly involved in packaging, shipping, and distributing narcotics.
On March 7, 2014, the Ontario/Upland Narcotics Task Force went to the home of Taylor and conducted a search of the residence. Officers also conducted a surveillance of the location and saw a man, later identified as defendant, leaving the location with his small son. Defendant was found to be on active parole for assault with a deadly weapon. A search of defendant's bedroom revealed a loaded .22-caliber gun, 0.9 grams of methamphetamine, and a receipt showing a package being shipped to the same address that was on the package the officer intercepted at the UPS store. Officers also found candle wax and a box with a shipping label bearing defendant's name. Defendant's cellular telephone showed messages indicating he was selling and trafficking drugs. A search of defendant's person revealed $1,600 in mixed U.S. currency.
On August 6, 2014, an information was filed charging defendant with two counts of sale or transportation of a controlled substance, to wit, methamphetamine and psilocybin (Health & Saf. Code, § 11379, subd. (a); count 1 and 2) with prior drug-related offenses (Health & Saf. Code, § 11370.2, subd. (c)), and felon in possession of a firearm (Pen. Code, § 29800, subd. (a); count 3). The information further alleged that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and five prior prison terms (Pen. Code, § 667.5, subd. (b)).
On November 19, 2015, pursuant to a negotiated plea agreement, defendant pled no contest to counts 1 and 2 and admitted one prior prison term in exchange for a stipulated term of six years (four years on count 1, plus one year on count 2, plus one year for the prior prison term) in state prison. After directly examining defendant, the trial court found that defendant knowingly, intelligently, freely and voluntarily waived his constitutional rights and that defendant understood his charges and the consequences of the plea and admission. The trial court also found that there was a factual basis for defendant's plea.
On January 28, 2016, defendant was sentenced to the total term of six years in state prison in accordance with his plea agreement. Various fees and fines were also imposed and defendant was awarded 680 days of credit for time served, consisting of 340 days of actual time plus 340 days of conduct time.
On or about April 8, 2016, defendant filed a petition for order granting presentence custody and conduct credits. Defendant claimed he had served 88 days in jail "as a result of my initial arrest" and requested "credit for 88 days actual time served plus an additional 88 days conduct credits . . . for a total of 176 days added to the original [680] days credited . . . totalling [sic] 856 days credit."
At a hearing on June 1, 2016, regarding defendant's petition for additional custody credits, defendant's trial counsel stated "I can't corroborate it with the court file" and requested the matter be referred to the probation department for a "further credit memo."
A hearing on defendant's petition was held on July 14, 2016. After the trial court discussed the issue with both counsel, the court stated, "The original order of 340 and 340 will stand. The Court finds no basis for the additional 88 days as requested by [defendant]."
On August 29, 2016, defendant filed a timely notice of appeal from the denial of his petition to modify his custody credits.
On December 21, 2016, the trial court granted defendant's appellate counsel's motion to recalculate defendant's presentence custody credit and awarded defendant an additional eight days of presentence credit. Defendant was therefore awarded a total of 688 days of credit for time served, consisting of 344 actual days plus 344 conduct days.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issue, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.