Opinion
E052893 Super.Ct.No. FSB704766
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. CASEY RAY TARBUTTON, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed with directions.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Casey Ray Tarbutton appeals raising the sole issue that the abstract of judgment does not properly reflect the custody credits to which he is entitled. The Attorney General concedes the error. Accordingly, we shall order the abstract of judgment corrected to reflect the proper credits.
FACTS AND PROCEDURAL HISTORY
In 2007, defendant was charged with a drug possession offense. In 2008, he pleaded guilty and was placed on probation. In 2009, defendant's probation was revoked, but the revocation of probation proceedings were to trail another case, a felony shoplifting charge.
Defendant was tried for the first time on the shoplifting charge in April 2009. Because some jurors overheard some prejudicial matter, the trial court in the shoplifting case granted a mistrial over defendant's objection, without attempting to see if a limiting instruction could be given. A second trial in the shoplifting case also resulted in a prompt mistrial, because of inadvertent prosecutorial mistake. A third trial was held in July 2009, upon which defendant was convicted. After the conviction in the shoplifting case, the trial court finally proceeded to the violation of probation hearing in the drug offense case. The court found defendant in violation of his probation, and sentenced him to the low term (doubled as a second strike) of one year four months, plus consecutive sentences on prior conviction enhancements. This sentence was made consecutive to the sentence (25 years to life as a third strike) in the shoplifting case. At the time of sentencing in 2009, defendant was credited with 249 actual days of custody, plus 124 days of conduct credits under Penal Code section 4019 (as it was then in effect), for a total of 373 days of custody credits.
Defendant filed an appeal in the lead case (shoplifting conviction) in September 2009. There, defendant contended that the trial court had erred in granting a mistrial at the first trial of the shoplifting charge, as the court had failed to inquire of the affected jurors whether they could set aside what they had heard, and to deliberate based solely on the evidence adduced at trial. Because defendant had been placed once in jeopardy on that charge, and the mistrial had been erroneously granted over defense objection and without manifest necessity, the subsequent trials were precluded by the double jeopardy clause. Accordingly, this court reversed the conviction in the shoplifting case, and ordered the matter dismissed. This court filed its opinion on June 28, 2010, and the shoplifting case was duly dismissed. The dismissal of the lead case led to defendant's resentencing on the drug charge in January 2011.
For resentencing, the trial court asked for a memorandum from the probation department calculating all defendant's custody credits, including time served in local jails and state prison time. The court sentenced defendant to a total term of six years in state prison (two years for the drug offense, doubled to four years as a second strike, plus one year each for two prison term priors), and by oral pronouncement, awarded custody credits for both local time and state prison time, including conduct credits. The abstract of judgment, however, reflects the actual custody and conduct credits only for defendant's county jail time.
Defendant filed a notice of appeal seeking to correct the abstract of judgment.
ANALYSIS
The Abstract of Judgment Should Be Amended to Reflect All of
Defendant's Custody Credits
The Attorney General has conceded the issue. When it pronounced the sentence, the trial court awarded defendant credit for 364 days of actual custody in state prison, plus 72 days of state prison conduct credits. It also awarded defendant 417 actual days of custody time in local jails, plus 208 days of conduct credits attributable to defendant's local custody time. The abstract of judgment, as the People admit, reflects only the local custody credits. "Thus, the abstract is in error and should be ordered corrected."
DISPOSITION
The abstract of judgment in this matter is ordered corrected to reflect that defendant was awarded credit for 364 days of actual state prison custody, plus 72 days of state prison conduct credits, in addition to the 417 actual days of credit and 208 days of conduct credit, as now stated on the abstract, attributable to defendant's local custody time. Defendant is entitled to credits against his state prison sentence of a total of 781 days of actual custody, plus 280 days of conduct credits. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur: KING
J.
MILLER
J.