Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD209525, Peter Gallagher, Judge.
NARES, Acting P. J.
INTRODUCTION
A. Guilty Plea
After the trial court denied Patrick Warren Alee's in propria persona motion to suppress evidence (Pen. Code, § 1538.5) and various other motions, Alee pleaded guilty to one count of selling cocaine base (count 1: Health & Saf. Code, § 11352, subd. (a)). He also admitted all allegations in the information that he (1) sold cocaine base within the meaning of Penal Code section 1203.073, subdivision (b)(7); (2) had a prior conviction within the meaning of Health and Safety Code section 11370, subdivision (a); (3) had a prior conviction of Health and Safety Code section 11352 within the meaning of Penal Code section 1203.07, subdivision (a)(11); (4) suffered six probation priors within the meaning of Penal Code section 1203, subdivision (e)(4); (5) suffered two prison priors within the meaning of Penal Code sections 667.5, subdivision (b) and 668; and (6) had two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).
B. Sentencing and Release from Custody
On November 13, 2008, the day of the sentencing hearing, defense counsel filed on Alee's behalf a combined sentencing statement in mitigation and motion under Penal Code section 1170, subdivision (a)(3) (hereafter Penal Code section 1170(a)(3)), requesting that the court (1) sentence Alee to three years in state prison, and (2) deem such sentence served pursuant to that subdivision on the ground "[Alee's] pre-sentence custody credits are equal to or exceed the sentence imposed." Both Alee, who was present and represented by counsel, and the prosecution submitted on the probation officer's report.
Penal Code section 1170(a)(3) provides in part: "In any case in which the amount of preimprisonment credit under... any... provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendant's last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole." (Italics added.)
The court sentenced Alee on count 1 to the lower term of three years in state prison with credit for the days he had been in custody and ordered all remaining allegations stricken.
Determining that Alee was entitled to 608 days of credit for time served, consisting of 406 days of local custody plus 202 conduct days (Pen. Code, § 4019), the court found that Alee had sufficient days of presentence credit to satisfy the imposed term of imprisonment and ordered him released under Penal Code section 1170(a)(3) (see fn. 1, ante). The court placed Alee on parole and ordered him to report to the parole officer nearest to his legal residence.
C. Remand to Custody
The California Department of Corrections and Rehabilitation (CDCR) thereafter informed the court in writing it had determined that Alee did not have sufficient days of credit to satisfy the imposed prison term, stating the court had granted a total of 608 days of presentence custody, but Alee needed a total of 1,095 days of presentence custody "to equal the [three-year] term imposed by the court." The CDCR also informed the court that "an additional 487 days of credit will be necessary to equal the term imposed by the court."
On May 22, 2009, the court remanded Alee to custody.
D. Resentencing
At the June 3, 2009 resentencing hearing, which Alee attended while represented by counsel, the court acknowledged it had made a mistake in calculating Alee's days in custody at the time of the sentencing hearing. The court indicated that for Alee's three-year term to be deemed served for purposes of Penal Code section 1170(a)(3), Alee needed at the time of sentencing "365 [days] times 3, [which] basically comes out to 1,095 days."
When the court indicated the CDCR was "looking for an additional 487 days credit necessary to equal the [three-year] term imposed by the court," neither Alee nor his counsel objected. Alee, however, asked the court to stay or suspend the remainder of the prison commitment on grounds he "[had]n't done anything" while released from custody, and he had complied with the court's order to report to the parole officer. The court did not modify the three-year sentence and ordered Alee "delivered to the [CDCR] for calculation of credits and deal with the credits and release through there."
This appeal followed. We need not recite the facts underlying Alee's conviction as they are not pertinent.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to the following as a possible, but not arguable issue: Whether "the state should have been forced to live up to its initial representation that [Alee] would be released based on his time served."
We granted Alee permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issue raised by appellate counsel, has disclosed no reasonably arguable appellate issue. Alee has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.