Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC579378
ELIA, J.Damien Apodaca (defendant) pleaded no contest on July 11, 2005, to one count of possession for sale of marijuana (Health & Saf. Code, § 11359, count one), and one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two). In addition, defendant admitted that he had suffered a prior strike conviction within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12 and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Following two probation revocation hearings, on February 7, 2008, the court revoked defendant's probation and sentenced him to serve two years in state prison consisting of the mid-term on count one.
On April 7, 2008, defendant filed a notice of appeal challenging events based on the sentence or matters occurring after the plea.
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. However, pursuant to Anders v. California (1967) 386 U.S. 738 (87 S.Ct. 1396), appellate counsel provided the following issue to assist this court in our independent review. Specifically, appellate counsel stated that defendant should have received additional presentence custody credits.
Appellate counsel does not give any reason why defendant is entitled to additional custody credits.
On October 8, 2008, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, we have reviewed the entire record and have concluded that there are no arguable issues on appeal, including appellate counsel's possible issue concerning defendant's custody credits. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.)
The facts are taken from defendant's probation report.
On January 21, 2005, San Jose police officers conducted a routine traffic stop of defendant's vehicle. As an officer approached the driver's side of the vehicle, he smelled the odor of marijuana coming from the car. The officer asked defendant to step out of the car. Defendant complied and the officer escorted him to the curb where the officer asked defendant if he had any weapons. Defendant replied that he did not. The officer told defendant that he had observed defendant displaying symptoms of being under the influence of a stimulant. The officer instructed defendant to turn around and face the car. At this time, something fell onto the ground and the officer saw a cigarette box between defendant's feet. The box had not been there when defendant first got out of the vehicle. When the officer opened the cigarette box he found a plastic bag that contained a green, leafy substance wrapped in nine individual Ziplock baggies. Also in the box, the officer found a baggie with an off-white crystalline substance, which the officer believed to be methamphetamine. The defendant was placed in handcuffs and placed in the back of a patrol car. Later, the white substance was tested and determined to be crystal methamphetamine with a weight of approximately .5 grams.
Procedural History
On June 3, 2005, the Santa Clara County District Attorney filed an information in which defendant was charged with one count of possession for sale of marijuana (Health & Saf. Code, § 11359, count one), and one count of possession of a controlled substance— methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two). The information alleged that defendant had suffered a prior strike conviction within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12 and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
As noted, defendant pleaded no contest on July 11, 2005, to both counts and admitted the allegations in the information. Before taking defendant's pleas, the court advised defendant of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709], and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. Defendant was advised that the maximum potential sentence for the charges to which he would be entering pleas was eight years four months and that he would be subject to a three-year period of parole when released from state prison. The prosecutor asked defendant's counsel if he had advised defendant of the possible immigration consequences of his pleas. Counsel confirmed that he had. Thereafter, the prosecutor asked defendant if he was entering his pleas regardless of the immigration consequences. Defendant confirmed that he was.
On October 6, 2005, the court granted defendant's request to strike his prior conviction and sentenced defendant as a no striker. The court suspended imposition of sentence, placed defendant on three years formal probation on, among other things, that he serve 12 months in county jail, not use drugs, participate in a drug program and pay certain fines including a $200 restitution fund fine (Pen. Code, § 1202.4). The court imposed but suspended a probation revocation fee in the same amount. (Pen. Code, § 1202.44.) The court awarded defendant 387 days of custody credits consisting of 259 actual days and 128 days pursuant to Penal Code section 4019. Accordingly, the court deemed defendant's county jail sentence served and ordered that he be released from custody.
On March 16, 2006, defendant admitted that he violated probation for failing to complete a drug program and by not making payments on his fines. The court modified the terms of defendant's probation on condition that he serve one year in county jail and waive all of his previously earned custody credits. Defendant waived all his custody credits after the court explained to him that once waived the credits would not be returned to him.
On November 29, 2007, defendant's probation officer filed a second petition for modification of probation. This time it was alleged that defendant failed to obey all laws in that on June 16, 2007, he allegedly committed a misdemeanor violation of Penal Code sections 415 (disturbing the peace) and 594 (vandalism). No charges were filed against defendant however. Furthermore, defendant failed to abstain from drug use in that he admitted to his parole agent that he had used methamphetamine three times between October 22, 2007, and November 2, 2007. Finally, defendant had "willfully failed to make regular payments towards fines and fees" leaving an outstanding balance of $4,441.55.
On February 7, 2008, appellant admitted that he violated probation. As noted, on the same day, the court sentenced defendant to two years in state prison. The court awarded defendant 529 days of custody credits. In addition, the court imposed a $200 parole revocation fine.
It appears that the court imposed, but did not suspend the parole revocation fine, as it is required to do. (Pen. Code, § 1202.45.) However, the abstract of judgment reflects that the parole revocation fine is suspended unless defendant's parole is revoked.
Subsequently, on April 3, 2008, defendant filed an ex parte motion to amend the abstract of judgment in his case to include conduct credits pursuant to Penal Code sections 2900.5 and 4019. Defendant alleged that the records of the California Department of Corrections reflected a total of only 353 days of presentence credits and 176 days of conduct credits. Defendant alleged that he had served 428 actual days in custody prior to being sentenced in this case.
The court denied defendant's motion on April 9, 2008, noting that defendant appeared to be seeking credit for time spent in custody on a San Mateo County case. Later, defendant clarified that he was seeking credit for time spent in a residential drug treatment program, Project 90, which the court had ordered as a condition of the grant of probation. On April 11, 2008, again, the court denied defendant's motion concluding that defendant was not entitled to credit because he failed to show the drug program he attended qualified as a custodial facility under Penal Code section 2900.5.
On the record before this court we cannot determine defendant's custody credits. Just as the trial court found, there is nothing in the record to indicate Project 90 is a custodial facility such that defendant would be entitled to custody credits for time he spent in the facility. (See People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921-1922.) Furthermore, defendant waived any entitlement he had to custody credits when the court reinstated him on probation on March 16, 2006. It appears that defendant attended Project 90 before March 16, 2006.
Our review of the entire record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.