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People v. Mossiah

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B204138 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA288918, Mark S. Arnold, Judge.

A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Keith H. Borjon and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.


TURNER, P. J.

Defendant, Mark A. Mossiah, appeals from an order revoking his probation. Defendant was given probation after he pled nolo contendere to one count of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) On January 12, 2006, defendant was sentenced to the upper term of five years. But the execution of sentence was suspended and defendant was placed on formal probation for a five-year period. Defendant was ordered to serve 252 days in county jail. The trial court awarded defendant a total of 242 of custody credits consisting of 162 days actual custody and 80 days of conduct credit.

All further statutory references are to the Health and Safety Code unless otherwise indicated.

On May 9, 2007, probation was summarily revoked. On August 6, 2007, a Penal Code section 1538.5 hearing was held in connection with a new charge. The transcript of that hearing served as the basis of probation revocation in this case. The testimony at the suppression of evidence hearing indicated defendant was arrested in a restaurant. During the hearing, a server in the restaurant explained that defendant told her he did not want to go to the front of the establishment because he was in possession of cocaine. Defendant then showed the server two bags filled with white powder. The transcript of the suppression of evidence hearing was read by the trial court in deciding whether to find defendant in violation of probation. On August 31, 2007, defendant was found in violation of probation and received a five-year term. Defendant was given a total of 456 days of custody credit consisting of 392 days actual custody plus 65 days of conduct credit. All of the mandatory fines and other assessments were properly imposed. Defendant filed a notice of appeal.

We appointed counsel to represent defendant on appeal. After examination of the record, appointed appellate counsel filed an “Opening Brief” in which no issues were raised. Appointed appellate counsel has requested we independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. We have examined the entire record and are satisfied that appointed appellate counsel has fully complied with his responsibilities. No argument now exists favorable to defendant on appeal. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Wende, supra, 25 Cal.3d at p. 441.)

On May 28, 2008, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wishes us to consider. On June 27, 2008 defendant filed a supplemental brief in which he claimed, the trial court abused its discretion in failing to apply the benefits of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, § 1210 et seq.) before revoking his probation. However, defendant was on probation from a conviction for possession for sale of cocaine base. The trial court was not required to consider Proposition 36 in revoking defendant’s probation because he had pled guilty to more than simple possession of drugs for personal use. (People v. Ferrando (2004) 115 Cal.App.4th 917, 920; People v. Glasper (2003) 113 Cal.App.4th 1104, 1114 ; see also People v. Wheeler (2005) 127 Cal.App.4th 873, 879-880.)

We asked the parties to brief the issue of whether defendant received on excessive day of conduct credit. Defendant received 65 days of conduct credit on the final 130 days he served before being found in violation of probation. He could only receive 64 days of conduct credit. (People v. Fabela (1993) 12 Cal.App.4th 1661, 1664; People v. Smith (1989) 211 Cal.App.3d 523, 527.) The presentence credit award must be so modified. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications in the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

Defendant’s argument that we cannot correct a jurisdictional error based on the United States Supreme Court’s analysis of federal law in Greenlaw v. United States (June 23, 2008, 07-330) ___ U.S. ___, ___. Greenlaw involves a nonjurisdictional error. This case involves a jurisdictional error which we are obligated to correct. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474.) California law parallels the analysis of the federal rule—nonjurisdictional errors may only be raised by an aggrieved party who has filed a notice of appeal. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11; In re Wimbs (1966) 65 Cal.2d 490, 498.)

The award of presentence credits is modified to reflect defendant received 64 days of presentence conduct credits. The judgment is affirmed in all other respects.

We concur: MOSK, J., KRIEGLER, J.


Summaries of

People v. Mossiah

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B204138 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Mossiah

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK A. MOSSIAH, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 22, 2008

Citations

No. B204138 (Cal. Ct. App. Jul. 22, 2008)