Opinion
F051237
5-3-2007
THE PEOPLE, Plaintiff and Respondent, v. JOHN DARRELL WEISNER, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer , Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Wiseman, J., and Cornell, J.
On June 23, 2006, pursuant to a plea agreement, appellant John Weisner pled as follows: in Tulare County Superior Court case No. VCF164413E (case No. 413), no contest to second degree burglary (Pen. Code, §§ 459 & 460, subd. (b)) and receiving stolen property (Pen. Code, § 496, subd. (a)), and in Tulare County Superior Court case No. VCF164186 (case No. 186), no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)).
Except as otherwise indicated, further references to dates of events are to dates in 2006.
On July 21, the court imposed an eight-month term on appellants burglary conviction in case No. 413 and a second eight-month term on his conviction of cocaine possession in case No. 186, and ordered that those terms run consecutively to each other and to a six-year term previously imposed in three other cases: Tulare County Superior Court case Nos. VCF099417-02A (case No. 417), VCF72438 (case No. 438) and VCF13055 (case No. 055). Initially, on July 21, the court awarded presentence credits as follows: in case No. 417, 558 days; in case No. 438, 739 days; in case No. 055, 333 days; in case No. 186, 85 days; and in case No. 413, 84 days. On August 23, the court issued a minute order amending the previous minute order and abstract of judgment to provide that in case No. 417 appellant was awarded 853 days of actual time and 42 days of conduct credits, for a total of 895 days of presentence credits.
The court did not impose sentence on appellants conviction of receiving stolen property in case No. 413. The reasons the court failed to impose sentence do not appear in the record.
It appears that on December 12, 2002, the court imposed a six-year term in case No. 417 and a concurrent two-year term in case No. 438; suspended criminal proceedings; and ordered appellant committed to the California Rehabilitation Center (CRC). It appears further that on October 21, 2004, the court imposed a concurrent 16-month term in case No. 055, and that at some point appellant was paroled from CRC.
The courts initial award of credits was based on a probation department memorandum setting forth dates of appellants confinement in CRC and the Bob Wiley Detention Facility. The basis for the courts modification of the credits award in case No. 413 does not appear in the record.
As indicated above, the aggregate sentence imposed on July 21 was seven years four months, and an abstract of judgment filed July 24 so indicates. However, one of the terms of appellants plea agreement was that he was to receive a sentence of six years eight months, and on August 8, the court issued an "AMENDED MINUTE ORDER" indicating that on the burglary conviction the court imposed a concurrent two-year term, thus making the aggregate sentence six years eight months. The abstract of judgment filed August 8 indicates a sentence of six years eight months. The August 8 abstract does not, of course, reflect the August 23 modification to the award of credits in case No. 417.
Appellant requested the court issue a certificate of probable cause (Pen. Code, § 1237.5). The court denied this request.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant himself, in response to this courts invitation to supplemental briefing, has submitted two letters in which, as best we can determine, (1) he argues that the court erroneously failed to award him presentence credits to which he was entitled, and (2) asks that this court provide the California Department of Corrections (CDC) with a copy of the abstract of judgment indicating the correct sentence, i.e., six years eight months. We will direct the court to issue an amended abstract of judgment, and in all other respects affirm.
FACTS
At appellants preliminary hearing in case No. 413, John Anderson, a loss prevention officer at Kohls Department Store in Visalia, testified to the following. On March 8, Anderson, utilizing the stores closed circuit television (CCTV) system, observed appellant remove four boxes of jewelry from a shelf and then kneel down, out of view of the camera. When appellant stood up, he was no longer holding the jewelry. Anderson went to the area of the store where appellant had been, but found no jewelry. Anderson then went outside the store, at which point he saw appellant driving away. Later that day, Anderson, utilizing the CCTV system, again observed appellant in the store. Anderson saw appellant select four pieces of jewelry and kneel on the floor. Anderson then went to the area of the store where appellant was, and saw appellant put the merchandise up the sleeves of his sweatshirt. At that point, appellant looked up and saw Anderson watching him. Appellant then removed the items from his sleeves, placed them on the floor and left the store. Anderson followed appellant to the parking lot, where appellant got into the same car he had driven earlier that day.
With respect to case No. 186, a police report contained in the appellate record indicates the following. On March 9, Officer Carsten of the Visalia Police Department, while on patrol with his partner, observed appellant and another person sitting in a parked car, hunched over. When the officers made a U-turn and drove toward the car, the car drove off. Officer Carsten observed that the car had a trailer hitch ball that was obscuring the rear license plate and, based on that observation, effected a stop of the car and made contact with the appellant and his companion. Appellant told Officer Carsten that he had been injecting cocaine mixed with water. Pursuant to the consent of appellants companion, who had been driving, Officer Carsten searched the car and found a plastic bag containing a white powdery residue and a syringe containing a clear liquid. Appellant admitted the syringe belonged to him.
DISCUSSION
Appellant contends the court failed to award him approximately 150 to 160 days of presentence credits under Penal Code section 2900.5 for time he was in custody in certain residential treatment facilities in Visalia and Porterville. This claim is apparently premised on the rule that "[t]he provisions of . . . section 2900.5 — entitling a defendant sentenced either to county jail or state prison to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation — apply to custodial time in a residential treatment facility as well as straight county jail time." (People v. Jeffrey (2004) 33 Cal.4th 312, 318.)
Appellant did not challenge the award of credits in the trial court, and we assume without deciding that this claim is properly before us. However, appellant simply asserts he is entitled to another 150 to 160 days of actual time credits. He points to nothing in the record, and we have uncovered nothing in the record establishing that he was not credited for time spent in custody, whether it be in one or more residential facilities or some other setting(s). Therefore, appellants claim fails. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" `All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown "].)
Appellant also asks that we direct that a copy of the abstract indicating the correct sentence be sent to the CDC. He asserts that the abstract of judgment filed August 8, which correctly indicates that his aggregate sentence is six years eight months, "never made it to CDC as of 1-8-07."
Upon independent review of the record, we have determined that following the courts order modifying the award of credits in case No. 417, the court did not issue an amended abstract of judgment reflecting this modification. Therefore, we will direct the trial court to issue an amended abstract and forward a certified copy to the CDC. This will address appellants concern, in that the amended abstract will necessarily indicate, as did the August 8 abstract, the correct aggregate sentence of six years eight months.
Pursuant to Government Code section 68081, we advised the parties we proposed to make such an order and invited briefing on the issue. Neither party responded to our invitation.
Our independent review of the record has revealed no other arguable legal or factual issues.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment reflecting the correct aggregate sentence, i.e., six years eight months, and the award of presentence credits in case No. 417 as modified by the August 23 order, i.e., 853 days of actual time and 42 days of conduct credits, for a total of 895 days of presentence credits. The trial court is further directed to forward a certified copy of the amended abstract to the CDC. In all other respects, the judgment is affirmed.