California Court of Appeals, Fourth District, Second Division
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from the Superior Court of Riverside County Nos. INF10000212 & INF1101571, Anthony R. Villalobos, Judge.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S. White and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
McKINSTER Acting P. J.
A. Case No. INF10000212 (Case 1)
On February 3, 2010, an information charged defendant and appellant Edgar Nunez with one count of possessing a controlled substance for sale, methamphetamine, under Health and Safety Code section 11378 (count 1); and possessing paraphernalia used for unlawfully injecting and smoking a controlled substance under Health and Safety Code section 11364 (count 2). With regard to count 1, the information further alleged that defendant possessed for sale a substance containing 28.5 grams or more of methamphetamine, and 57 grams or more of a substance containing methamphetamine, within the meaning of Penal Code section 1203.073, subdivision (b)(2).
On June 4, 2010, defendant pled guilty to all counts.
The same day, defendant was sentenced to state prison for a total term of two years. The trial court selected count 1 as the principal count and imposed the middle term of two years. On count 2, the trial court imposed 180 days to run concurrent to count 1. The trial court suspended execution of the sentence and placed defendant on supervised probation for three years with 365 days in local custody. Defendant was awarded credit for time served for 16 actual days plus 16 days under section 4019, for a total of 32 days credit.
B. Case No. INF1101571 (Case 2)
On August 10, 2011, an amended information charged defendant with one count of possessing a controlled substance for sale, methamphetamine, under Health and Safety Code section 11378 (count 1). With regard to this count, the information alleged that defendant was previously convicted of a felony violation of section 11378 of the Health and Safety Code, within the meaning of Health and Safety Code section 11370.2, subdivision (c). The information also alleged that defendant had one or more prior convictions for violating the Health and Safety Code, within the meaning of Penal Code section 1203.07, subdivision (a)(11).
On October 24, 2011, defendant pled guilty as charged and admitted the prior conviction enhancements.
C. Sentencing in Both Cases
1. Case 1
On October 24, 2011, because of defendant’s guilty plea in Case 2, the trial court found defendant to be in violation of probation in Case 1, and executed the sentence of two years to be served in the Riverside County jail and to run concurrent with the sentence in Case 2. For the probation violation, defendant was awarded credit for time served of 292 actual days plus 163 days under section 4019, for a total of 455 days credit. Counsel objected to this calculation; it was overruled.
2. Case 2
The trial court sentenced defendant to custody for a total term of five years, to be served in the Riverside County jail under section 1170, subdivision (h), and to run concurrent to the sentence in Case 1. The trial court imposed the middle term of two years on count 1, and three years to run consecutive for the enhancement. The trial court executed the two-year term for count 1, but suspended execution of the three-year term granting supervised release under section 1170, subdivision (h)(5). Therefore, defendant must serve two years in county jail on both cases, then complete his sentence on Case 2 with three years of supervised release.
In Case 2, defendant was awarded credit for time served of 109 actual days, plus 54 days under section 4019, for a total of 163 days credit. Counsel objected to this calculation; it was overruled.
On November 16, 2011, defendant filed a notice of appeal in both cases. On appeal, defendant claimed that the trial court erred in calculating his section 4019 conduct credits. In an opinion filed on February 5, 2013, we modified defendant’s conduct credits. Moreover, in the appeal, the People claimed that the trial court miscalculated defendant’s actual custody credit in Case 1. We affirmed the trial court’s award of custody credit in Case 1.
After the issuance of our opinion, defendant filed a petition for rehearing on February 21, 2013. On March 5, 2013, we granted the petition and directed the parties to file supplemental letter briefs addressing the issue raised in the petition.
For the reasons set forth post, we hold that we lack statutory authority to reduce defendant’s mandatory supervised probationary period on appeal.
STATEMENT OF FACTS