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The People v. Thomas Kevin Colabine

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


May 24, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THOMAS KEVIN COLABINE, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F05977)

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

P. v. Colabine 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Thomas Colabine asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error that would result in a disposition more favorable to defendant, and no concerns regarding presentence credits. Accordingly, we will affirm the judgment. However, because the trial court did not identify the statutory bases for all fees and fines, we will direct the trial court to issue an amended abstract of judgment.

I In May 2009, defendant knowingly drove with a suspended license. A test at the jail 90 minutes later showed his blood-alcohol level to be 0.27 percent. He had a 2003 conviction for making criminal threats and convictions in November 1999, March 2000 and November 2006 for driving under the influence (DUI).

A July 2009 complaint included counts for DUI, driving with a blood alcohol level of .08 percent or more, and driving with a suspended license. It also contained allegations regarding defendant's various prior convictions and excessive blood-alcohol level.

At the preliminary hearing in December 2009, the trial court denied defense counsel's request to strike the allegation of a prior serious felony because defendant had an extensive history of DUI and there was evidence of his elevated blood-alcohol level in the present matter. Regarding defendant's request to substitute appointed counsel, the trial court concluded after a closed hearing that defense counsel did not commit any lapses in representation and there was no breakdown in the attorney-client relationship.

Defendant entered a negotiated plea of guilty to DUI (Veh. Code, § 23152, subd. (a)) and no contest to driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). He also admitted the allegations that he had a blood-alcohol level in excess of 0.15 percent, that he committed three prior DUI offenses within 10 years, and that he had a prior serious felony conviction for making criminal threats. Pursuant to the plea agreement, the trial court dismissed a charge alleging a violation of Vehicle Code section 23152, subdivision (b), and sentenced defendant to 32 months in state prison.

Regarding presentence credits, the trial court explained to defendant that it would not award him credit for time he spent in custody on a separate parole violation. Defendant disputed this and provided the trial court with documents, but the trial court said it would not relitigate the matter. The trial court limited credits for actual custody attributable to the present proceeding to two days in May 2009 and also the period from November 3, 2009, to the date of sentencing (January 22, 2010), a total of 83 days. Based on that figure, the court awarded 40 days of conduct credits. At the request of appellate counsel, the trial court issued an amended abstract of decision correcting these totals to 87 days actual custody and 42 days conduct, because -- as the probation report indicated -- defendant had six days of custody in May 2009 attributable to the present proceeding.

The trial court also imposed various fines and fees, but the oral rendition of judgment, minute order, and abstract do not include the statutory basis for the security fee, jail booking fee, classification fee, or facilities fee.

Defendant did not express any concerns in the trial court tending to show that his plea was involuntary, uninformed, or a function of trial counsel's inappropriate advice. (See People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.)

This court granted defendant's application to deem timely his belated notice of appeal. His notice of appeal did not include a request for a certificate of probable cause.

II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. Defendant filed a supplemental brief.

Defendant challenges the trial court's determination that he was in custody from May to November 2009 for a separate parole violation. He contends the separate matter was dismissed after he filed a demand for trial pursuant to Penal Code section 1381. Referencing an attachment to his supplemental brief that is not in the record, defendant asserts the parole hold imposed on May 19, 2009, was released on June 2, 2009, without any finding of a violation. He further argues that appellate counsel incorrectly made reference to a parole violation in its brief, trial counsel was ineffective because she did not substantiate his Penal Code section 1381 motion more fully, and we must award him additional custody credit because his entire period of custody in 2009 was attributable to the present proceeding.

In addition, defendant attaches a printout to his supplemental brief indicating that his DUI offense was committed within seven years of three previous DUIs, arguing that because he only had one prior DUI within seven years, we must reverse the judgment.

Matters outside the appellate record are beyond the scope of our review on appeal unless they are properly subject to judicial notice. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 334, pp. 385-386, § 335(1), p. 386.) Defendant does not establish that judicial notice is appropriate. He simply attached unverified documents to his brief without explanation. The trial court concluded that a separate parole violation was established and that defendant did not file a Penal Code section 1381 demand. Defendant cannot challenge those findings on direct appeal by reference to extra-judicial facts and materials, but we can presume on direct appeal that trial counsel did not have any additional evidence to substantiate defendant's section 1381 claim, and reasonably concluded that it would not be helpful to defendant to include the documents presented at sentencing in the record. (People v. Pope (1979) 23 Cal.3d 412, 426 & fn. 16.)

Moreover, the alleged printout referencing a seven-year period does not supersede the judgment, which is based on defendant's admission of three prior offenses within the correct 10-year period.

In addition to reviewing defendant's contentions in his supplemental brief, we have also undertaken an independent examination of the entire record. We do not find any arguable error that would result in a disposition more favorable to defendant.*fn1 However, as the judgment must identify the statutory bases for all fees and fines, we will direct the trial court to amend the abstract of judgment to include the statutory bases. (People v. Eddards (2008) 162 Cal.App.4th 712, 717; People v. High (2004) 119 Cal.App.4th 1192, 1200.)

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that includes the statutory bases for the imposed fines and fees, and to forward it to the California Department of Corrections and Rehabilitation.

We concur: NICHOLSON , Acting P.J. ROBIE ,J.


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