Opinion
F075763
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. CHAD RAY GARNER, Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15CMS3412, 15CM2410)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Appellant Chad Ray Garner appeals from a finding, after a contested hearing, that he violated his probation. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCDURAL BACKGROUND
On May 27, 2015, Garner was involved in a disturbance at a residence during which he slapped his girlfriend and grabbed her hair, pulling some of it out. When the woman's 14-year-old daughter tried to call 911, Garner grabbed the phone from the daughter and his girlfriend tried to help. Garner pushed his girlfriend, knocking her down and causing her to hit her head (case No. 15CM2410).
On May 29, 2015, in case No. 15CM2410, the Kings County District Attorney filed a complaint charging Garner with felony dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)); count 1), battery on a person who is dating the defendant (§ 243, subd. (e)(1); count 2), a misdemeanor, and inflicting physical or emotional pain on a child (§ 273a, subd. (b); count 3), a misdemeanor.
All further statutory references are to the Penal Code, unless otherwise indicated.
On June 11, 2015, in case No. 15CM2410, Garner pled no contest to dissuading a witness (§ 136.1, subd. (b)(1)) in exchange for the dismissal of the remaining charges and a grant of probation.
On July 6, 2015, as Garner's girlfriend walked down an alley, Garner rode up on his bicycle and grabbed her cellphone and wallet out of her hand. The wallet, however, fell to the ground. Garner spun the bicycle around to retrieve it and almost hit his girlfriend, causing her to fall down. Garner grabbed the wallet and rode off (case No. 15CMS3412). The following day when he was arrested, Garner had a small a small bag of methamphetamine in one of his pants pockets.
On September 2, 2015, the Kings County District Attorney filed a first amended information in case No. 15CMS3412, charging Garner with robbery (§211; count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), a serious felony enhancement (§ 667, subd. (a)), and an on-bail enhancement (§ 12022.1). The information also alleged that Garner had a prior conviction within the meaning of the "Three Strikes" law. (§ 667, subds. (b)-(i).)
On September 10, 2015, in case No. 15CMS3412, Garner pled no contest to second degree robbery in exchange for the dismissal of the remaining count and allegations and a grant of probation.
On October 6, 2015, Garner did not appear for his sentencing hearing.
On November 2, 2015, Garner appeared for sentencing and the court placed him on probation for five years in both cases on condition that he serve a year in custody in case No. 15CM2410, and 98 days in custody in case No. 15CMS3412.
On January 6, 2017, the probation department filed a report of probation violation alleging Garner violated his probation by changing his address without obtaining permission from his probation officer, and by committing a battery offense (§ 242) on July 18, 2016. In the narrative of the case section the report stated that on July 18, 2016, Garner was arrested for battery. On August 11, 2016, a probation officer attempted to contact Garner at his last known address in Hanford, and was informed by a resident that Garner no longer lived there because he assaulted another resident, and that he had last been there two weeks earlier. The probation officer also sent Garner a text message on that date asking him to contact the officer but Garner never responded.
On February 21, 2017, Garner was arrested.
On March 15, 2017, at a hearing on the alleged probation violations, Kings County Sheriff's Deputy Lowell Loll testified that on July 18, 2016, he arrested Garner for battery. Garner then began yelling at the alleged victim and pulling back and shuffling his feet when Loll escorted him, handcuffed, to his patrol car. During the ride to jail, Garner spit at the partition and yelled at the deputy.
Probation officer Amanda Dennis testified that on August 11, 2016, she went to look for Garner at his last known address, but did not find him there. She then went back to her office and sent a text message to the phone number she had on file for him.
At the conclusion of the hearing, the court found that although his resistance was minimal when Loll arrested him, it was sufficient to violate his probation. The court also stated that it was going to reinstate probation but because it did not have Gardner's custody credits, it continued the matter to March 22, 2017, for a sentencing hearing. The court also released Garner from custody.
On March 22, 2017, Garner failed to appear in court and a warrant issued for his arrest.
On April 9, 2017, Garner was arrested for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550), and possession of drug paraphernalia (Health & Saf. Code, § 11364).
On May 31, 2017, the court sentenced Garner to an aggregate prison term of three years eight months: the middle term of three years on his robbery conviction and an eight-month term (one-third the middle term of two years) on his dissuading a victim conviction. Additionally, in case No. 15CMS2410, the court awarded Garner 32 days of presentence custody credit: 16 days of presentence actual custody credit and 16 days of presentence conduct credit. In case No. 15CMS3412, the court awarded him 488 days of presentence custody credit: 244 days of presentence actual custody credit and 244 days of presentence conduct credit.
Garner's abstract of judgment indicates in section 16 that the conduct credit in each case was awarded pursuant to section 4019.
Garner's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Garner has not responded to this court's invitation to submit additional briefing. However, our review of the record disclosed that the court erred in its award of presentence custody credit.
On May 15, 2018, this court sent the parties a letter advising them of this issue and allowing them to submit a letter brief. Neither party submitted a brief. --------
Section 2933.1 provides that "any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933 [relating to prison credits]." (§ 2933.1, subd. (a).) "The statute applies '[n]otwithstanding Section 4019 or any other provision of the law' and limits to 15 percent the maximum number of conduct credits available to 'any person who is convicted of a felony offense listed in Section 667.5.' That is, by its terms, section 2933.1 applies to the offender not to the offense and so limits a violent felon's conduct credits irrespective of whether or not all his or her offenses come within section 667.5." (People v. Ramos (1996) 50 Cal.App.4th 810, 817.)
Because robbery is a violent felony (§ 667.5, subd. (c)(9)) and section 2933.1 applies to the offender, Garner's robbery conviction limited him to earning only 15 percent conduct credit against the sentence imposed on each of his convictions. Thus, the court erred when it awarded presentence conduct credit that exceeded 15 percent of his presentence actual custody credit and we will modify the judgment to correct this error.
Based on the 16 days Garner spent in presentence custody in case No. 15CMS2410, the court should have awarded him only 2 days of presentence conduct credit and a total of 18 days of presentence custody credit (16 days x 0.15 = 2.4 days; 2 days + 16 days = 18 days). Further, based on the 244 days Garner spent in presentence custody in case No. 15CMS3412, the court should have awarded him only 36 days of presentence conduct credit and a total of 280 days of presentence custody credit (244 days x 0.15 = 36.6 days; 36 days + 244 days = 280 days).
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is modified to award Garner 18 days of presentence custody credit (16 actual custody credit and 2 days of presentence conduct credit) in case No. 15CMS2410 and 280 days of presentence custody credit (244 days of presentence actual custody credit and 36 days of presentence conduct credit) in case No. 15CMS3412. The trial court is directed to issue an amended abstract of judgment that incorporates the above modifications and indicates in section 16 that in each case, Garner's conduct credit was awarded pursuant to section 2933.1. The trial court is further directed to forward a certified copy of the abstract of judgment to the appropriate authorities. As modified, the judgment is affirmed.