(Super. Ct. No. NCR79776)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Christopher Michael Smithers pleaded guilty to felony resisting arrest (Pen. Code, § 69) and admitted a prior strike conviction. He was sentenced to a term of 32 months in state prison. He appeals, contending the trial court erred by failing to award him presentence custody credits as a result of a parole hold that was placed on him at the time of his arrest. We agree and remand the matter for resentencing.
Defendant was arrested in July 2010 and charged with driving under the influence of alcohol with priors (Veh. Code, §§ 23152, subds. (a) & (b), 23550, subd. (a)), felony resisting arrest (Pen. Code, § 69), battery on a peace officer (Pen. Code, § 243, subd. (b)), driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), and hit and run driving (Veh. Code, § 20002, subd. (a)), with enhancements for three prior prison terms (Pen. Code, § 667.5, subd. (b)) and a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). On the same date, he was booked on a parole violation.
In November 2010, defendant pleaded guilty to resisting arrest and admitted the prior strike conviction. In a presentence report, it was recommended that he not be given any presentence custody credits because he was also in custody on the parole violation.
At the sentencing hearing, which occurred in January 2011, defense counsel told the court that the parole violation was based solely on "these facts" and, consequently, he believed defendant was entitled to presentence custody credits. The court sentenced defendant but continued the matter to determine whether the parole violation was based solely on the current offense. The following day, the deputy district attorney reported to the court that, according to a parole agent, defendant's parole violation was based on "the incidents involved in this case," in addition to the consumption of alcohol. After confirming defendant's parole violation was based on more than just the resisting arrest offense, the court found defendant was not entitled to presentence custody credits because "there were factors that he was violated on by [p]arole that were not involved in this offense." Defendant filed a notice of appeal.
In March 2011, defendant's appellate attorney wrote a letter to the trial court requesting that defendant be awarded presentence custody credits. According to the letter and attached documentation, prior to entering his plea in the current matter, defendant accepted an "optional waiver" of his right to a parole hearing, which preserved his right to a hearing if requested within 15 days of the completion of local proceedings.
California Code of Regulations, title 15, section 2641, subdivision (b) provides: "Optional Waiver. A parolee who is undergoing criminal prosecution may conditionally waive the revocation hearing, but retain the option to request a hearing as provided in this subsection. Upon receipt of a signed optional waiver, the Board at the central office calendar will determine whether there is good cause to revoke parole. This determination will be made without a hearing or personal appearance by the parolee. [¶] If the Board orders parole revoked and the parolee returned to custody, the parolee then may request a revocation hearing. A hearing request must be received by the Board no more than 15 days following sentencing or final disposition at the trial court level in the criminal proceedings and no later than two months before expiration of the revocation period ordered by the Board at the central office calendar. Upon receipt of a hearing request, the Board shall schedule a revocation hearing. At the hearing the panel may take any appropriate action."
Following defendant's sentencing in the current matter, he requested a parole hearing, which took place one week later. According to the written summary from the hearing, all charges were dismissed except the resisting arrest allegation "in the int[erest]s of justice to match dismissed and guilty charges in minute order e-mailed by att[orne]y."
The trial court denied the request to amend defendant's presentence custody credits because it did not "involv[e] 'calculation error' of the custody credits." ...