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The People v. Kaniah Mccauley

May 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KANIAH MCCAULEY, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 07F08499 & 07F04857)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. McCauley

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kaniah McCauley appeals from a judgment entered after the trial court revoked her probation. She contends (and the People agree) the court erred in imposing a cumulative jail sentence in excess of one year in case No. 07F08499 (case 8499) in violation of Penal Code section 19.2.*fn1 We agree and shall remand for resentencing.

BACKGROUND

Given the issues raised on appeal, we need not describe the facts of defendant's offenses.

In November 2007, defendant pled no contest in case 8499 to possessing hydrocodone.*fn2 The court suspended imposition of judgment and placed defendant on four years' formal probation on the condition (among others) that she serve 270 days in county jail; execution of the jail time was suspended pending her successful completion of a Proposition 36 drug program.*fn3 After defendant violated her probation, she was deleted from the Proposition 36 program probation and admitted to drug court.

In October 2008, defendant again violated her probation in case 8499; probation was reinstated on the condition defendant serve an additional 60 days of jail time, for a total of 330 days' jail time, again, suspended for defendant's participation in drug court. When defendant failed drug court, she was ordered to serve the 330 days' jail time, with 68 days of custody credit. She was released on April 11, 2009, and her probation was reinstated.

In October 2009, defendant was arrested for methamphetamine possession and was found thereafter to have violated her probation in case 8499. The court then reinstated her probation on the condition (among others) that she serve 65 days in county jail.

The parties agree that, with the last reinstatement of probation, the court effectively sentenced defendant to jail for 395 days in case 8499.

DISCUSSION

When circumstances warrant, a court may sentence a felon to probation instead of prison, and condition that probation on serving time in county jail. (§ 1203.1, subd. (a).) Such a county jail sentence cannot, however, exceed one year. (Id., § 19.2.)*fn4 Moreover, if the defendant thereafter violates probation, the court may exercise its discretion to reinstate probation conditioned on the defendant's serving additional jail time, but the time the person had already spent in custody ...


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