Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06904187-2, Jonathan B. Conklin, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Harris, Acting P.J., Levy, J., and Dawson, J.
OPINION
On February 5, 2005, someone stole a truck tractor from Craig Parker.
On February 22, 2006, Fresno police officers were dispatched to a location where they found the stolen truck and spoke to Steve Talley, the owner of the property where it was located. Talley told the officers that appellant, Clayton Dale Daughtrey, had been parking and living in the truck tractor since August 2005. Talley had seen Daughtrey drive the vehicle on eight or nine occasions.
On June 27, 2006, the district attorney filed a complaint charging Daughtrey with one count each of vehicle theft (count 1/Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (count 2/Pen. Code, § 496d, subd. (a)). The complaint also alleged two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and, in count 1, that Daughtrey had two prior vehicle theft convictions (Veh. Code, § 10851, subd. (e)).
On April 6, 2006, at Wasco State Prison, while Daughtrey was serving time on an unrelated matter, officers contacted him regarding the stolen truck tractor.
On November 22, 2006, Daughtrey sent a Notice and Demand for Trial pursuant to Penal Code section 1381.
On December 29, 2006, Daughtrey pled guilty to auto theft and admitted the two prior conviction allegations in the instant matter in exchange for the dismissal of the remaining count and enhancements and a lid of two years.
On January 30, 2007, the court sentenced Daughtrey in the instant matter to a two-year term, concurrent to the three-year term he was already serving. During the hearing, defense counsel advised the court he had spoken with the probation department and the district attorney and they agreed with defense counsel that since the Penal Code section 1381 demand letter was “noticed” to the district attorney’s office on November 22, 2006, Daughtrey was entitled to presentence custody credit from that day forward. The court subsequently awarded Daughtrey a total of 103 days of presentence custody credit consisting of 69 days of actual custody credit and 34 days of conduct credit.
Daughtrey’s appellate counsel initially filed a brief which summarized the facts, with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Our review of the record disclosed that Daughtrey is not entitled to presentence custody credit from November 22, 2006, through January 30, 2007, because he was already serving a sentence on an unrelated case. (In re Rojas (1979) 23 Cal.3d 152, 155 [defendant not entitled to credit for period of presentence time spent in custody where defendant was already serving a sentence on an unrelated case].)
In a letter brief, submitted at this court’s invitation, Daughtrey contends his plea bargain provided that he would get credit for the 103 days at issue. Thus, according to Daughtrey, if the court eliminates his award of presentence custody credit, he should be allowed to withdraw his plea. In support of these contentions, Daughtrey cites defense counsel’s statement at his sentencing hearing that he, the prosecutor, and the probation department agreed Daughtrey was entitled to 103 days. Daughtrey is wrong.
It is unclear from the record why defense counsel, the prosecutor, and the probation department agreed Daughtrey should receive presentence custody credit from the date he sent his trial demand letter on November 22, 2006, through his date of sentencing on January 30, 2007. However, nothing in the sentencing hearing record indicates that Daughtrey’s plea agreement provided that he would receive presentence custody credit for this period of time. Daughtrey’s contention is also contradicted by the Felony Advisement, Waiver of Rights, and Plea form he signed when he entered his plea in the instant matter. In specifying the terms of Daughtrey’s plea bargain, this form states only that in exchange for Daughtrey’s no contest plea to vehicle theft the remaining count and enhancements would be dismissed and he would receive a stipulated term of two years. It does not mention anything about presentence custody credit. Accordingly, we reject Daughtrey’s contention that his plea bargain provided he would receive presentence custody credit for the time period at issue and that he is entitled to withdraw his plea if he does not receive this credit.
Further, following independent review of the record we find that with the exception of the credit issue discussed above, no other reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is modified to strike the 103 days of presentence custody credit the court awarded Daughtrey. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.