Opinion
A148115
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DUANE JAMES BOWIE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. CR1504806B, CR1506018)
Defendant Duane James Bowie, Jr. appeals an order denying his motion to be discharged from post release community supervision (PRCS). His counsel on appeal has asked this court to review the record independently to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has been apprised of his right to personally file a supplemental brief, but has not done so. We have reviewed the record, found no arguable issues, and therefore affirm the order.
FACTS AND PROCEDURAL HISTORY
In July 2014, defendant was released from state prison, where he had been incarcerated for motor vehicle theft, a felony violation of Vehicle Code section 10851, subdivision (a). (People v. Bowie (Super. Ct. Humboldt County, 2016, No. CR1506018) (the original case).) He began serving a three-year period of PRCS under supervision of the Humboldt County Probation Department (Probation).
On March 6, 2015, the trial court revoked and reinstated defendant's supervision pursuant to Penal Code section 1203.2, and imposed a custodial sanction of 120 days in Humboldt County Correctional Facility (county jail), with one day suspended.
All further undesignated statutory references are to the Penal Code.
On September 28, 2015, the trial court again revoked and reinstated defendant's supervision pursuant to section 1203.2, and imposed a custodial sanction of 180 days in county jail, with one day suspended.
On October 19, 2015, defendant was charged in a new felony complaint with being a prohibited person in possession of ammunition in violation of section 30305, subdivision (a)(1) (count two). (People v. Bowie (Super. Ct. Humboldt County, 2016, No. CR1504806B) (the new case).) Defendant was arraigned the following day, entered a not guilty plea, and was remanded into custody, to continue serving his custodial sanction in the original case.
A codefendant, Georgina Bell Archambault, also was charged with conduct described in counts one and three.
On November 2, 2015, defendant returned to the trial court to change his plea in the new case. At that time, the charge that he had been a prohibited person in possession of ammunition was reduced to a misdemeanor, and a new felony charge was added, i.e., that he made space available to manufacture, store, or distribute a controlled substance in violation of Health and Safety Code section 11366.5 (count four). Defendant pled guilty to both charges the same day. A month later, on December 2, he received a split sentence of three years, requiring that he serve one day in county jail and the remaining two years, three hundred sixty-four days under mandatory supervision.
Although defendant was sentenced by a judge other than the one who accepted the guilty plea, he waived his rights under People v. Arbuckle (1978) 22 Cal.3d 749.
In the meantime, defendant completed his jail sentence in the original case, was released, and entered a residential substance abuse treatment program. On December 20, 2015, he violated a policy of his residential treatment program by leaving before staff arrived. When he returned, he admitted having used methamphetamine and was discharged from the program. Three days later, he failed to report to his probation officer as directed. On December 31, 2015, Probation filed petitions to revoke defendant's PRCS in the original case, and to revoke mandatory supervision in the new case, contending he had violated the terms of his supervision in both matters. Defendant appeared in court for both cases on January 29, 2016 and denied the alleged violations.
On March 3, 2016, while both petitions were pending, defense counsel filed a motion seeking an order discharging him from PRCS. The motion argued that defendant could not be required to serve his existing PRCS term consecutive to his new sentence of mandatory supervision, because the latter effectively qualified as a new term of imprisonment. The motion cited section 3000.08, subdivision (k), which directs that a person convicted of a felony requiring "community supervision . . . who still has a period of state parole to serve shall discharge from state parole at the time of release to community supervision." Then, equating "community supervision" (see Pen. Code, § 3456, subd. (a)) with "mandatory supervision" (see id., § 1170, subd. (h)(5)(B)) on the one hand, and parole (see id., § 3000.08) with PRCS (id., § 3456, subd. (a)) on the other hand, the motion asserted that a defendant convicted of a felony requiring mandatory supervision who still has a period of PRCS to serve must be discharged from PRCS when released to mandatory supervision. (But see id., § 3456 [specifying circumstances in which PRCS may be discharged].) Although acknowledging the absence of on-point authority to support this assertion, the motion cited a case and a treatise addressing circumstances in which consecutive sentences are, or may be, prohibited: People v. Matthews (1980) 102 Cal.App.3d 704, 713 (when a defendant is returned to state prison because of a new felony conviction, the trial court may not order the new term to be consecutive to the time the defendant would be serving for the parole revocation); Couzens & Bigelow, Felony Sentencing After Realignment, (Aug. 2015) Barrister Press <http://www.courts.ca.gov/partners/documents/felony_sentencing.pdf> (a trial court likely may not impose a jail term for violation of PRCS and simultaneously a new substantive term consecutive to the PRCS term). The People filed no written response to defendant's motion.
Defendant's motion misidentified this statute as section 3008, subdivision (k).
On March 8, 2016, defendant admitted the violations that were the subject of the petitions to revoke PRCS and mandatory supervision, and agreed to be sentenced immediately, before the court had ruled on his motion to discharge PRCS. Accordingly, the trial court sentenced him on the same date. In the original case, it reinstated PRCS, tolling time for the period when the petition to revoke had been pending, and imposed a custodial sanction of 180 days in county jail, with one day suspended to facilitate defendant's entrance into a treatment program. In the new case, it reinstated mandatory supervision, and imposed a custodial sanction of 180 days in county jail, with one day suspended. With the People's concurrence, the trial court ordered these sentences to be served concurrently, and authorized defendant's release to Probation or its designee for entry into a treatment program. The court awarded defendant 84 days of credit for time served in each case, consisting of 42 days of actual time plus 42 days of conduct time.
On March 25, 2016, defendant filed a motion requesting that the court modify his sentence by striking the one day suspended from his jail time to allow him to qualify for "SWAP" (presumably the Sheriff's Work Alternative Program). The court granted his request on April 1, 2016.
On April 8, 2016, the trial court heard defendant's motion to discharge PRCS. Concluding that PRCS and mandatory supervision served different functions and that PRCS, therefore, was not discharged when mandatory supervision was imposed, the court denied the motion. In doing so, however, the court reiterated that the sentences in the two cases would run concurrently. On April 18, 2016, defendant filed a timely notice of appeal.
As defendant commenced three years of PRCS in the original case in July 2014, and commenced mandatory supervision in the new case for a nearly identical period (three years less one day) almost a year and a half later, in December 2015, he almost certainly would have completed PRCS before he completed mandatory supervision in any case. (See also Pen. Code, § 3456, subds. (a)(2)-(a)(3) [providing for early termination of PRCS where a defendant has no violations for six months or a year].) --------
DISCUSSION
Following the Wende guidelines, we have reviewed counsel's brief and the entire appellate record and discern no arguable issues. This includes counsel's suggestion we consider whether the trial court erred in interpreting section 3000.08, subdivision (k). Defendant has not availed himself of the opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues raised personally by appellant in a Wende proceeding]), nor has he requested to have counsel relieved. Consequently, we affirm the order. (Wende, supra, 25 Cal.3d at p. 443).
DISPOSITION
The order is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.