Opinion
E073544
07-17-2020
THE PEOPLE, Plaintiff and Respondent, v. BORA THACH, Defendant and Appellant.
David Zarmi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17003540) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald J. Gilbert, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On September 18, 2017, a felony complaint charged defendant and appellant Bora Thach with driving or taking a vehicle without consent under Vehicle Code section 10851, subdivision (a). The complaint also alleged that defendant previously had been convicted of five vehicle theft offenses under Penal Code section 666.5, and served three prior prison terms under Penal Code section 667.5, subdivision (b).
On September 26, 2017, pursuant to a plea agreement, defendant pled guilty to taking a vehicle without consent and admitted a prior vehicle theft conviction. The remaining special allegations were dismissed. Thereafter, the trial court sentenced defendant to the upper term of four years, consisting of six months in county jail and three years six months suspended pending completion of probation. On July 17, 2018, defendant was released to drug court.
On July 19, 2018, defendant admitted to violating probation, which was revoked and reinstated. On October 11, 2018, defendant was remanded to county jail for two days to serve a drug court sanction. On November 1, 2018, and again on December 6, 2018, defendant admitted violations of probation, which again was revoked and reinstated. On April 18, 2018, defendant was remanded to county jail for four days to serve a drug court sanction.
On April 25, 2019, defendant violated probation by failing to appear at a scheduled hearing in court. The court revoked defendant's probation and issued a bench warrant for defendant's failure to appear. On June 20, 2019, defendant admitted the violation. The court then terminated defendant's probation and imposed the upper term of four years in state prison. The court awarded defendant 812 days of custody credit consisting of 263 actual days, 262 days of conduct credit, and 390 days of mandatory supervision credit.
The court miscalculated the total—263 plus 262 plus 390 days is 915 days.
On August 13, 2019, the trial court resentenced defendant and calculated 915 days of custody credit consisting of 263 actual days, 262 days of conduct credit, and 390 days of mandatory supervision credit. The court stated that defendant only had to serve half time of the four years, and immediately released defendant from custody.
Although the trial court miscalculated the total as 815 days, the court accurately stated that defendant was being awarded 263 actual days, 262 days of conduct credit, and 390 days of mandatory supervision credit—which adds up to 915 days. The clerk's transcript and the San Bernardino County Probation Department both correctly calculated the credits as 915 days. --------
On August 20, 2019, defendant filed a notice of appeal in propria persona. On September 20, 2019, appellate counsel filed an amended notice of appeal. Defendant did not request a certificate of probable cause in either the original notice of appeal or the amended notice of appeal.
B. FACTUAL HISTORY
1. UNDERLYING CRIME
According to the police report, on September 14, 2017, San Bernardino County Sheriff's Deputy Kassis was patrolling in a marked police car. "Dispatch advised all Highland police units of a stolen white Honda Civic . . . that was spotted going west bound on 5th street from Central in the city of Highland." Deputy Kassis found the stolen car being driven by defendant. The deputy positioned his car behind the Civic and activated his lights and siren.
As Deputy Kassis followed, defendant turned into an apartment complex parking lot and began driving "at a high rate of speed . . . with disregard to the safety of the people and children of the apartment complex." Defendant drove around until the parking lot ended. He then tried to open the door and flee while the car was still moving. Deputy Kassis was able to get out of his car and hold defendant at gunpoint before defendant could flee.
Defendant admitted that the car did not belong to him. Defendant, however, stated that he thought the car was abandoned. Defendant used an old key that he was carrying to start the car.
2. DEFENDANT'S ADMISSIONS TO THE MOST RECENT PROBATION VIOLATIONS
As part of the mandatory supervision of the 2017 conviction, defendant agreed not to violate any laws and to obey "all reasonable directive of the Probation Officers."
On April 8, 2019, defendant appeared in court for a drug court review hearing. Defendant was ordered to serve four days in jail as a drug sanction. Defendant was also ordered to appear for his next drug court review hearing on August 25, 2019.
On April 25, 2019, defendant failed to appear for his drug court review hearing and a bench warrant was issued for his arrest.
On June 3, 2019, defendant appeared in court. The court revoked defendant's mandatory supervision and remanded defendant to custody. On June 29, 2019, defendant admitted that he had violated probation.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist this court in its search of the record for error:
1. "Whether there is appealable error due to lack of securing an express admission to the probation violation?"
2. "Did the court abuse its discretion in not reinstating probation and ordering [defendant] to complete the remaining stayed sentence?"
3. "Was there prejudicial error by failing to order a supplemental probation report as required by People v. Dobbins (2005) 127 Cal.App.4th 176?"
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and find no arguable issue for reversal on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.