The opinion of the court was delivered by: Murray , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we will order an additional day of custody credit and otherwise affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 25, 2007, defendant Oliver Pascal Dubin, a passenger in a van stopped by police officers, was found to be in possession of four baggies of marijuana, eight baggies of methamphetamine, and close to $2,800 in cash. He was charged with possession for sale and transportation of both substances. (Health & Saf. Code, §§ 11378, 11359, 11360, subd. (a), 11379, subd. (a).) Two prior narcotics convictions and three prior prison terms were also alleged. (Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b).)
On January 13, 2009, defendant pled guilty to transportation of methamphetamine and marijuana and admitted having two prior narcotics convictions and serving two prior prison terms. As part of the plea agreement, the trial court released defendant for one week to apply to a drug treatment program with the understanding that, if defendant appeared on the scheduled return date, he would be permitted to withdraw his plea to the transportation of marijuana count and to the prison priors (as well as to a count in an unrelated case). Defendant's maximum prison exposure would then be reduced to 10 years and the court would consider probation. Should defendant fail to appear, he would be sentenced to 13 years eight months.
Defendant appeared at the scheduled hearing and reported he had been accepted into the Delancey Street program in San Francisco. Defendant was released on bail and appeared March 17, 2009 for sentencing as ordered. The matter was referred to the probation department and a new date of May 5, 2009 was set for sentencing. Due to some problems with mail delivery and telephone messages, defendant had not met with the probation department prior to the hearing. The hearing was rescheduled for July 16, 2009.
The probation department's presentence report recommended that defendant be denied probation. At the July 16, 2009 sentencing hearing, the court explained it was offering defendant a different agreement than the one to which he had initially agreed. The court offered to place defendant on probation "in return for a greater sentence should you violate probation." The greater sentence would be 13 years. The court asked defendant if he was "willing to abide by this adjustment in your original negotiated plea" and defendant said he was. Defendant also waived all of his past custody credits. Accordingly, the court sentenced defendant to 13 years, suspended execution of sentence, reinstated probation, and released defendant, ordering him "to be enrolled in, and living at the Delancey Street program on or before August 7th, 2009." He was told to be in court on August 7, 2009 if he was not so enrolled.*fn1
After talking to his probation officer, defendant came to the incorrect conclusion that he had options available to him other than enrollment in the Delancey Street program by August 7, 2009 and, instead, appeared in court on that date. The court remanded defendant into custody and a petition for revocation of probation was filed.
After the August 20, 2009 probation revocation hearing, the court found that, although it did not believe defendant misunderstood that he was to be enrolled in the Delancey Street program by August 7, 2009, there was insufficient evidence that defendant had willfully violation probation. Accordingly, the court dismissed the petition for revocation of probation and reinstated probation on the condition defendant enroll in the Delancey Street program by August 27, 2009.
Defendant did not report to the Delancey Street program. On September 6, 2009, he was arrested in Mill Valley, Marin County, for possession of methamphetamine and drug paraphernalia. He was released from jail but failed to report to ...