Opinion
A113797
11-30-2006
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE PAYTON, Defendant and Appellant.
On September 19, 2001, Christopher Lee Payton was charged with various offenses in two complaints. In case number CR014142S, Payton was alleged to have committed several felony offenses, including violating Health and Safety Code section 11366.5, subdivision (a) (allowing a place for selling or using a controlled substance), after a search of his home on May 10, 2001, revealed 232 growing marijuana plants. In case number CR014143S, Payton was alleged to have committed several offenses, including three felony offenses of violating Penal Code section 273a, subdivision (a) (child endangerment); one felony offense of violating Penal Code section 245, subdivision (a)(1) (assault with a motor vehicle), and one misdemeanor offense of violating Vehicle Code section 23103, subdivision (a) (reckless driving). The latter charges arose out of a July 16, 2001, incident during which Payton drove a car at approximately 100 miles per hour on a highway, nearly colliding with other vehicles, and after stopping his vehicle, he threw a large object at another car, hitting that vehicles hood. Paytons three young children were in his car, and witnesses described the children as hysterical and crying during the incident. Payton pleaded not guilty to the charges in both complaints.
At the beginning of a change of plea hearing on October 3, 2001, Payton moved to relieve his assigned counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The court appropriately questioned both Payton and his counsel before it denied the motion for new counsel. After being advised of his rights and the consequences of his plea, Payton pleaded guilty to the following offenses: (1) one felony count of violating Health and Safety Code section 11366.5, subdivision (a), (2) one felony count of violating Penal Code section 273a, subdivision (a), (3) one misdemeanor count of violating Penal Code 245, subdivision (a)(1), and (4) one misdemeanor count of violating Vehicle Code section 23103, subdivision (a). The other offenses alleged in both complaints were dismissed. At sentencing on January 28, 2002, the court imposed five year probationary terms on the felony offenses, and three years conditional, revocable releases on the misdemeanor offenses. As conditions of his probation, Payton was required to obey all laws and comply with all terms of his probation, and to serve one year in jail with credit for time served of 199 days.
More than two years later, in September 2004, the District Attorney sought to revoke Paytons probation on the ground that Payton had committed perjury by denying under oath certain statements he had made to law enforcement officers during an investigation of an unrelated case.
Before the August 2005, probation revocation hearing, Payton moved to exclude his statements to the investigating law enforcement officers on the ground he was subjected to custodial interrogation without being advised of his Miranda rights, the attorney with whom he conferred during the interview did not represent him, and the statements were involuntary. After viewing the videotape of Paytons interview , and considering the testimony of the interviewing officers, Payton, and his attorney at the interview, the court denied Paytons motion to exclude his statements to the investigating officers. The court noted there was no custodial interrogation but merely an interview to seek evidence, that Payton had been advised of his rights by counsel, and implicitly denied Paytons contention that his statements were involuntary.
After considering additional evidence, including Paytons statements to the investigating officers regarding the crime and Paytons later testimony under oath, the testimony of the chief investigator of the district attorneys office, and the testimony of an expert psychologist called as a defense witness, the court determined the District Attorney had proven, by a preponderance of the evidence, that Payton had violated the terms of probation by committing perjury.
In October 2005, the probation department filed notices seeking to revoke Paytons probation on the ground he had violated certain terms of probation while the matter was pending sentence on the earlier probation violation. At a November 18, 2005, hearing, after being advised of his rights, Payton admitted he violated probation by leaving the county without the permission of his probation officer. The court ordered the Department of Corrections to perform a diagnostic evaluation of Payton under Penal Code section 1203.3.
At the April 25, 2006, sentencing hearing, the court considered several probation department reports, the Department of Corrections diagnostic report, and two supplemental mitigation statements filed by counsel. The probation department recommended revocation of probation and the imposition of the maximum aggregate term of six years eight months on the felony offenses in both cases. The court stated its reasons for permanently revoking probation and that its tentative decision was to impose an aggregate term of six years on the felony offenses. However, after considering the argument of counsel and Payton, the court imposed an aggregate term of four years eight months on the felony offenses, stating proper reasons for imposing the middle term of four years on the conviction for violating Penal Code, section 273a, subdivision (a), and a consecutive term of eight months on the conviction for violating Health and Safety Code, section 11366.5, subdivision (a). The court permanently stayed punishment on the misdemeanor offenses. The court awarded Payton credit for time served, including credit for actual days served and good conduct credit. As prescribed by statute, the court ordered Payton to pay a restitution fine of $1,200, and a parole restitution fine in the same amount was suspended unless parole was revoked. The court properly required Payton to register as a drug offender under Health and Safety Code section 11590 based on his conviction for violating Health and Safety Code section 11366.5, subdivision (a).
Paytons appellate counsel has filed a brief raising no arguable issues and asks us to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We have conducted that review, and agree with counsels assessment that there are no issues warranting further briefing in this case. Although Payton was advised of his right to file a supplemental brief, he has not filed such a brief.
DISPOSITION
The judgment of April 25, 2006, is modified by striking the directive that the Department of Corrections is to credit the defendant for 93 days. As so modified, the judgment is affirmed. The Humboldt County Superior Court is directed to prepare an amended abstract of judgment eliminating the directive that the Department of Corrections is to credit the defendant for 93 days, and to forward a certified copy of that document to the Department of Corrections and Rehabilitation.
We concur:
PARRILLI, J.
POLLAK, J. --------------- Notes: The court originally awarded Payton total credit of 336 days, and directed the Department of Corrections to credit him for an additional 93 days that he spent in prison for the presentence diagnostic evaluation. However, because the prison did not award good conduct credit for the 93 days, Payton asked the court to modify its award by granting him an additional 93 days actual credit and 46 days good conduct credit. The court granted the request and issued an amended abstract of judgment reflecting total credit of 475 days. However, there appears to be a clerical error in the amended abstract of judgment filed on October 17, 2006. Although the document accurately reflects the credit of 475 days, it still contains the directive that the Department of Corrections is to credit Payton for 93 days. Because the 93 days are now included in the award of 475 days, the directive to the Department of Corrections should be deleted.