IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
August 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PAUL ZACHERY CANTARUTTI, DEFENDANT AND APPELLANT.
(Super. Ct. No. CR073037)
The opinion of the court was delivered by: Raye , P. J.
P. v. Cantarutti
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
About 2:00 a.m. on June 5, 2007, defendant Paul Zachery Cantarutti drove 100 miles per hour on Covell Boulevard in Davis. An officer attempted a traffic stop but defendant failed to pull over and led the officer on a high-speed chase for approximately two miles. Defendant's blood alcohol content was .17 percent. Defendant's passengers told officers that they had asked defendant to slow down and to stop.
Defendant entered a negotiated plea of no contest to felony evading (Veh. Code, § 2800.2, subd. (a)) and driving under the influence, a misdemeanor (Veh. Code, § 23152, subd. (a)), in exchange for dismissal of the remaining counts and no state prison at the outset.
The court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions.
Defendant violated probation by driving with a blood alcohol content of .08 percent. On June 6, 2008, probation was reinstated.
Defendant again violated probation by being publicly intoxicated. On October 30, 2009, the court imposed the midterm of two years, suspended execution, and reinstated probation. Defendant was ordered to enter a residential treatment program and to appear in court on November 20, 2009, for placement review.
Defendant failed to appear in court on November 20, 2009. A no-bail warrant was issued for his arrest. The matter was continued to December 4, 2009. Defendant appeared at that time and the bench warrant was recalled. The matter was continued to December 18, 2009, and defendant failed to appear.
On December 24, 2009, a request for revocation of probation alleged that defendant violated probation by failing to appear in court on November 20, 2009, and on December 18, 2009, and by failing to appear at the probation department. Probation was revoked on December 24, 2009, and the matter was continued to January 8, 2010. On January 8, 2010, defendant failed to appear and the court ordered that a no-bail bench warrant issue. On January 22, 2010, the bench warrant was issued.
On April 19, 2010, defendant was served with the no-bail bench warrant while in custody in the Sacramento County jail. On April 20, 2010, he was transported to the Yolo County jail.
On May 28, 2010, an allegation that he had been convicted of petty theft in Sacramento County was added to the request for revocation of probation. Defendant admitted that allegation and the failure to appear allegations were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
The court sentenced defendant to state prison for the previously imposed midterm of two years.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, raising two claims. First, he claims he is entitled to credit towards his two-year prison term for time served on the Sacramento County petty theft offense. We reject this claim.
Penal Code section 2900.5, subdivision (b) provides that presentence credits shall be given "only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." Thus, "a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." (People v. Bruner (1995) 9 Cal.4th 1178, 1191 (Bruner).)
"[A] period of time previously credited against a sentence for unrelated offenses cannot be deemed 'attributable to proceedings' resulting in a later-imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence." (In re Joyner (1989) 48 Cal.3d 487, 489; accord, Bruner, supra, 9 Cal.4th at pp. 1180-1181.)
The record does not reflect that defendant would have been at liberty during the period of time for which he claims credit. In her May 24, 2010, report, the probation officer stated: on January 23, 2010, defendant was arrested for robbery, according to "the Sacramento County Jail booking officer of the day"; defendant was charged in Sacramento County case No. 10M0624; on April 19, 2010, he was convicted of petty theft and was granted three years' informal probation; and, according to defendant, he received credit from January 23, 2010, to April 19, 2010, in the Sacramento County case. The probation officer reported that defendant provided her with a "Sacramento County booking receipt indicating he was being held on the Yolo County no bail warrant as of January 26, 2010." But the probation officer also reported that based on Sacramento County records, defendant was not served with the Yolo County warrant until April 19, 2010, and thus he was entitled to only one day of credit for April 19, 2010.
In the trial court, defense counsel provided a document that had been described in the probation report as a booking receipt. The trial court stated: "The document the defendant has provided, which is an inmate booking information receipt generated by the Sacramento County Sheriff's Department, seems to indicate that [defendant] was arrested in Sacramento County on January 23rd by the Sacramento Police Department and charged on January 26th, 2010, with petty theft and with misdemeanor battery. [¶] The probation officer points out that he served the time in Sacramento County jail after he was convicted of those -- or of the petty theft offense. The probation officer checked with the officer today in Sacramento County, and the officer of the day confirmed that the Yolo County warrant was not served on the defendant until April 19th, 2010. So while he was in custody in another jurisdiction, the custody was not attributable to the warrant issued by this court. It was rather attributable to the defendant's criminal behavior in Sacramento County. That means that he's not entitled to dual credit for the time he spent in custody in Sacramento County from the date of his arrest until April 19th. He is, of course, entitled to dual credit [for one day] since the warrant was served on him on April 19th."
There is no indication in the record that defendant would have been released from the Sacramento County jail prior to April 19, 2010, "but for" the bench warrant in the Yolo County case. The record reflects that the bench warrant was served on April 19, 2010, and he received one day's credit for that day. Having received credit from January 23, 2010, to April 19, 2010, in the Sacramento County case, he is not entitled to duplicate credit for any day other than the day he was served with the bench warrant.
Defendant's second and final claim is that because the trial court appears to have failed to state that his two-year prison term was to run consecutively to defendant's Sacramento County case, it must run concurrently. We reject this claim as well.
Penal Code section 669 provides, in relevant part, as follows: "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. . . . [¶] . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently."
The record reflects that defendant was convicted of petty theft and granted informal probation in the Sacramento County case. The record does not reflect that sentence was imposed on the petty theft offense. Defendant reported receiving credit from January 23, 2010, to April 19, 2010, towards his Sacramento County case. Defendant apparently received credit for time served on jail time imposed as a condition of probation in that case, which is not the same as a term of imprisonment on a judgment for purposes of Penal Code section 669. (See People v. Downey (2000) 82 Cal.App.4th 899, 913; see also People v. Howard (1997) 16 Cal.4th 1081, 1092.) The two-year prison sentence imposed in the current case is the only sentence, and there is nothing to run it concurrently with or consecutively to since defendant has not been sentenced to a term of imprisonment in the Sacramento County case.
We note an error in sentencing. The trial court awarded 227 actual days and 226 conduct days, for a total of 453 days of presentence custody credit. Based on the recent amendment to Penal Code section 2933, defendant is entitled to one additional conduct day. (Pen. Code, § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, §1, eff. Sept. 28, 2010].)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to provide for one additional conduct day, for a total of 454 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: NICHOLSON , J. HOCH , J.
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