(Super. Ct. No. CRF10-01138)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Brent Ray Close entered a plea of no contest to infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)--count I)*fn1 in exchange for a stipulated sentence of four years in state prison and the dismissal of the remaining counts and allegations. The court sentenced defendant accordingly. The court awarded 90 actual days and 44 conduct days for a total of 134 days of presentence custody credit.
Defendant appeals. His request for a certificate of probable cause (§ 1237.5) was denied. He contends the trial court failed to award one-for-one presentence custody credits. We agree and shall modify the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 5, 2010, a California Highway Patrol officer was informed by two separate drivers that a pickup truck was "out of control and the driver . . . was 'beating up a woman.'" The officer found and stopped the truck which was driven by defendant. Defendant, having failed field sobriety tests, was arrested for driving under the influence. His female passenger was crying and had multiple injuries. The officer saw a bag of marijuana on the floorboard and a further search revealed 100 grams of marijuana and prescription bottles with the passenger's name. The passenger was arrested for being under the influence. A driver and passenger of another vehicle informed the officer that they were forced off the road when defendant's truck swerved towards them. They were not hit but required assistance to get their vehicle out of a snow bank.
Defendant was charged with corporal injury to a cohabitant (count I) and assault with a deadly weapon, to wit, his truck, and by means of force likely to produce great bodily injury (count II). Defendant was also charged with two misdemeanors: being under the influence (count III) and driving with wanton disregard for the safety of persons and property (count IV). The accusatory pleading alleged two prior prison terms (§ 667.5, subd. (b)) and a strike prior, a first degree burglary (§§ 459, 667, subds. (b)-(i)).
Defendant's negotiated plea to the corporal injury count provided for the dismissal of the remaining counts and allegations. The plea form reflects that defendant initialed the following two statements, the second immediately following the first:
"I understand that, as part of the plea agreement bargain, the following counts will be dismissed after sentencing: [¶] Ct II, III, IV, Priors[.]
"I understand and agree that the sentencing judge may consider facts underlying dismissed counts to determine restitution and to sentence me on the counts to which I am entering a plea." (See People v. Harvey (1979) 25 Cal.3d 754 (Harvey).)
At the entry of plea hearing, the court explained:
"THE COURT: All right. Mr. Close, I've been handed a green plea form with explanation and waiver of rights, felony, with some initials in these boxes and a signature where indicated. ...