Opinion
C056380
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL JAMES, Defendant and Appellant.
NOT TO BE PUBLISHED
This appeal involves three cases consolidated for sentencing: Yolo County Superior Court case Nos. CRF032609, CRF041937, and CRF064302.
In 2003 defendant David Michael James stole a motorcycle and later failed to appear in court. Defendant pled no contest in case No. CRF032609 to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and failing to appear on a felony charge while on bail (Pen. Code, § 1320.5). The trial court suspended imposition of sentence and placed defendant on three years formal probation on the condition, among others, that he serve 210 days in county jail.
During a probation search in 2004 defendant was found in possession of methamphetamine. Defendant pled no contest in case No. CRF041937 to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted violating the conditions of his probation in case No. CRF032609. The trial court suspended imposition of sentence and placed defendant on three years formal probation pursuant to Proposition 36. (Pen. Code, § 1210.1.) His probation was revoked and reinstated in case No. CRF032609 on the additional condition that he serve 90 days in county jail.
In 2005 defendant admitted violating the terms and conditions of his probation in case Nos. CRF032609 and CRF041937 by stealing lost property. (Pen. Code, § 485.) His probation was revoked and reinstated in both cases, except that he was excluded from Proposition 36 probation in case No. CRF041937. His probation in case No. CRF032609 was extended to June 2007.
In 2006 defendant was found in possession of a stolen car. He was charged in case No. CRF064302 with unlawfully driving or taking a vehicle with a prior (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). Defendant initially pled not guilty to both charges. The trial court denied defendants request for substitute counsel. Defendant pled no contest to unlawfully driving or taking a vehicle, admitted a prior conviction for the same, and admitted violating the conditions of his probation in case Nos. CRF032609 and CRF041937 in exchange for a four year sentencing lid in all three cases.
All three cases were consolidated for sentencing. The trial court terminated defendants probation in case Nos. CRF032609 and CRF041937 and sentenced him to an aggregate term of four years in state prison as follows: two years in case No. CRF064302 for unlawfully driving or taking a vehicle with a prior, a consecutive eight months in case No. CRF032609 for unlawfully taking or driving a vehicle, a consecutive eight months in case No. CRF032609 for failing to appear, and a consecutive eight months in case No. CRF041937 for possessing methamphetamine. The court awarded defendant one day of presentence custody credit in case No. CRF064302, 169 days (125 actual days and 44 good conduct) in case No. CRF032609, and 69 days (47 actual days and 22 good conduct) in case No. CRF041937. The trial court imposed a restitution fine of $200 (Pen. Code, § 1202.4, subd. (b)) and suspended an additional restitution fine in the same amount pending successful completion of parole (Pen. Code, § 1202.45) in each case.
Defendant appeals. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We note an error in the calculation of defendants presentence custody credits in case No. CRF032609. Defendant was awarded 125 actual days of credit in that case, which included 37 days of credit for time he spent in the sheriffs work incentive program (SWIP). He was not awarded any conduct credit for the time he spent in SWIP. According to the probation report prepared for the 2007 sentencing hearing, defendant was not entitled to conduct credit for SWIP.
Persons who voluntarily participate in a work release program under Penal Code section 4024.2 are not entitled to credit for either the actual days spent in the program or conduct days, while persons who are mandated to participate in such a program pursuant to Penal Code section 4024.3 are entitled to credit for both. (Pen. Code, §§ 4024.2, 4024.3, subd. (a); People v. Richter (2005) 128 Cal.App.4th 575, 579-584.) Insofar as defendant only received credit for the actual days he spent in SWIP, he either received too much or too little credit.
Having reviewed the record, it is not clear whether defendants participation in SWIP was voluntary or mandatory. The original probation order provided in pertinent part: "If probationer wishes to apply for an alternative custody program [such as SWIP], and the court agrees, s/he must contact the Sheriffs Work Program Coordinator . . . within 72 hours of this order . . . ." This language suggests defendants participation in SWIP was voluntary.
According to the probation report prepared for the 2007 sentencing hearing, however, "defendant participated in SWIP in 2003, where he completed 37 of the 38 days ordered before he was failed due to three unexcused absences." (Italics added.) This language suggests defendants participation in SWIP was mandatory.
The miscalculation of presentence custody credits results in an unauthorized sentence that may be corrected at any time. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-917; cf. People v. Scott (1994) 9 Cal.4th 331, 354.)
We will remand for the trial courts determination of whether defendants participation in SWIP was voluntary or mandatory. Should the court determine that defendants participation was mandatory, it shall also inquire into the number of days defendant participated in the program. The probation report reflects that defendant participated in SWIP from October 22, 2003, to March 30, 2004, for a total of 37 "actual" days. However, there are 161 days from and including October 22, 2003, to and including March 30, 2004.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The matter is remanded to the trial court to determine defendants entitlement, if any, to actual days and conduct days for the time spent in SWIP and, should the court determine his participation was mandatory, the actual number of days he spent in SWIP.
The judgment is otherwise affirmed.
We concur:
BUTZ, J.
CANTIL-SAKAUYE, J.