Opinion
A115253
5-11-2007
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO LEON ZAMORA, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Guillermo Leon Zamora appeals from a consolidated judgment entered in three cases imposing an aggregate five-year four-month sentence upon pleas of guilty and no contest. Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record, and the court has received supplemental briefing on the issue of custody credits. We find no arguable issue and shall affirm.
Background
On February 7, 2003, defendant was charged by an information, in case No. SCR-32690, with one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), one count of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and one count of driving with a blood alcohol level of . 08 or more (Veh. Code, § 23152, subd. (b)). He entered a plea of guilty to possession of cocaine and driving with a blood alcohol level of .08 or more and the second count was dismissed. On August 20, 2003, he was placed on 36 months probation, and imposition of sentence was suspended. One condition of probation was that he successfully complete a residential program of drug rehabilitation, and he waived credit for time spent in the program. Defendant completed that program between September 10 and December 5, 2003.
On April 22, 2004, defendant was charged by a new complaint, in case No. MCR-440498, with possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). Probation was summarily revoked in the first case. On May 5, 2004, defendant entered a plea of guilty to possession of cocaine and was placed on probation. The court reinstated probation in the original case with modified terms.
On March 16, 2005, defendant was charged in a third case, case No. SCR-459934, with one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), one count of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), and one count of driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Probation in case No. SCR-32690 was summarily revoked. On June 2, 2006, defendant pled guilty to transporting cocaine and admitted that he was in violation of the terms of his probation in the other two cases.
On July 20, 2006, the trial court sentenced defendant to five years and four months in prison, consisting of the midterm of four years for the count of transporting cocaine in case No. SCR-459934, plus eight months (one-third the midterm) for each of two counts of possession of cocaine in case Nos. SCR-32690 and MCR-440498. In case No. SCR 459934, the court imposed a restitution fine of $800 under Penal Code section 1202.4, subdivision (a)(3)(b), and a suspended fine of $800 under Penal Code section 1202.45. Defendant was given credit for 170 days (114 actual custody plus 56 good conduct). In case Nos. MCR-440498 and SCR-32690 the court imposed restitution fines of $200 under Penal Code section 1202.4, subdivision (b), and suspended fines of $200 under Penal Code section 1202.45. In case No. SCR-32690 defendant was given credit for 110 days (74 actual custody plus 36 good conduct). He was given no credit on case No. MCR-440498. In all three cases defendant was ordered to provide blood and saliva samples pursuant to Penal Code section 296, and to register as a narcotics offender under Health and Safety Code section 11590.
On September 15, 2006, defendant timely filed a notice of appeal.
DISCUSSION
When a defendant appeals after a conviction based on a plea of guilty or no contest, our review is limited to postconviction matters. As a general rule, "appeals may not be brought by defendants who have pleaded guilty or nolo contendere. [Penal Code section 1237.5] provides the general rule that defendants who have pleaded guilty must obtain a certificate of probable cause before they may bring an appeal." (People v. Hunter (2002) 100 Cal.App.4th 37, 41.)
After the above sentence was imposed, defendant wrote to the trial court, asserting that he was entitled to additional credit for time served. Defendant stated that he was "entitled to 10 months credit on one of my cases plus an additional 6 months and plus an ad[d]itional 3 months for the residential treatment program that I attended and graduated successfully." He did not specify the basis for his asserted entitlement to these additional credits, aside from his reference to time spent in the residential treatment program. This court requested further briefing concerning the calculation of defendants custody credits and defense counsel and the Attorney General filed supplemental briefs. After reviewing the records in the several cases, we conclude defendants credits were properly calculated.
At the time of sentencing in case No. SCR-32690, defendant knowingly waived his right to credit for the time spent in the residential treatment program. At the hearing on August 20, 2003, defendants attorney explained, "you have a right if you are sentenced to a residential treatment program to get credits for every day that you spend in a treatment program against any further sentence you may receive in the future provided youre on probation. Do you agree to waive those?" Defendant replied, "Yes." The waiver was valid. (People v. Arnold (2004) 33 Cal. 4th 294, 307.)
The 10-month period mentioned by defendant appears to refer to a sentence that he served and completed in a still-earlier case, No. MCR-344234, a 1999 conviction for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and having an open container of alcohol in a vehicle (Veh. Code, § 23222, subd. (b).) The time served on the sentence in that case has no bearing on the sentence imposed in the three cases on appeal. Defendant is not entitled to credit in these cases for the time served in that case.
Neither the supplemental briefing nor the records before us provide any indication of the basis for defendants assertion of entitlement to an additional six months of credit. However, we find no error in the calculations before us. The 58 days that defendant remained in county jail between July 14 and September 9, 2003, awaiting transfer to the residential treatment program, were included in the period for which defendant received credit against the sentence in case No. SCR-459934. Defendant received no credit for the period during which he was in custody in connection with case No. MCR-440498 because the credit for those days was applied to the sentences in the two other cases, and defendant is not entitled to overlapping credits.
There are no issues that require further briefing. Defendant was advised of his right to file a supplemental brief and has not done so.
DISPOSITION
The judgment is affirmed.
We concur:
Parrilli, Acting P. J.
Siggins, J. --------------- Notes: The 15 days between April 21 and May 5, 2004, and the 16 days between March 15 and March 30, 2005, were applied to the sentence in case No. SCR-32690. The 98 days between April 14 and July 20, 2006, were applied to the sentence in case No. SCR-459934.