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The People v. Trevor Daniel Crowder

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yolo


April 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TREVOR DANIEL CROWDER, DEFENDANT AND APPELLANT.

Super. Ct. No. CRF 05-7198

The opinion of the court was delivered by: Nicholson ,j.

P. v. Crowder CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Trevor Daniel Crowder pled no contest to misdemeanor criminal threats (Pen. Code, §§ 422/17, subd. (b)(3)),*fn1 and felony infliction of injury on a cohabitant (§ 273.5). Under the plea agreement, defendant received a suspended term of two years in state prison on the felony with deferred entry of judgment on that charge, which would be dismissed if he followed the terms of his misdemeanor probation. Defendant violated his probation by committing a new offense, and the trial court imposed the two-year state prison term.

Defendant appeals, seeking amendment of the abstract of judgment to reflect that his prison sentence is to run concurrently to time he received for a parole violation. We discern no basis for granting his request.

PROCEDURAL BACKGROUND

Defendant entered his pleas of no contest to the aforementioned charges in December 2005 with the understanding that a two-year state prison term would be suspended on the felony and he would receive deferred entry of judgment on that charge and a dismissal if he followed the terms of his misdemeanor probation. In April 2008, the People sought an order revoking defendant's probation, alleging he had been convicted of burglary (§ 459) in another county. Defendant admitted violating his probation. While awaiting imposition of sentence, he was arrested on new charges in yet another county and was returned to prison on a parole violation. The trial court in the present matter then imposed the previously suspended two-year term in state prison.

DISCUSSION

Defendant claims the abstract of judgment should be amended to reflect that his two-year state prison sentence is to run concurrently with the sentence he was already serving. He is incorrect.

Section 669 provides, in pertinent part: "When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." If the court fails to make a determination in this regard within the time period specified in the statute, "the term of imprisonment on the second or subsequent judgment shall run concurrently." (§ 669.)

Revocation of parole, however, is not a judicial act, and an order revoking parole is not a judgment. (See In re Tucker (1971) 5 Cal.3d 171, 177; People v. Penner (1980) 111 Cal.App.3d 168, 172.) The "term of imprisonment" set by a court ends before parole begins and "has nothing to do with any time confined as a parole violation." (Community Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 816-817; see People v. Mathews (1980) 102 Cal.App.3d 704, 712 [term of imprisonment expires prior to release on parole and is deemed completed at that time].)

As is evident from these authorities, the consecutive/concurrent sentencing provisions of section 669 do not apply when a defendant is serving time on an unrelated parole violation at the time of his sentencing. (Cf. People v. Penner, supra, 111 Cal.App.3d at p. 170 [entitlement to custody credits for parole revocation based on same conduct as new conviction].) Accordingly, we reject defendant's claim to the contrary.

DISPOSITION*fn2

The judgment is affirmed.

We concur: RAYE, P.J. BUTZ ,J.


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