People v. Jeffery CA5 ( 2022 )


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  • Filed 9/13/22 P. v. Jeffery CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    THE PEOPLE,
    F083578
    Plaintiff and Respondent,
    (Super. Ct. No. MF012801A)
    v.
    ZACKARY JEFFERY,                                                                      OPINION
    Defendant and Appellant.
    THE COURT *
    APPEAL from a judgment of the Superior Court of Kern County. Charles R.
    Brehmer, Judge.
    Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Office of the State Attorney General, Sacramento, California, for Plaintiff and
    Respondent.
    -ooOoo-
    *        Before Hill, P. J., Franson, J. and Snauffer, J.
    Appointed counsel for defendant Zackary Jeffery asked this court to review the
    record to determine whether there are any arguable issues on appeal. (People v. Wende
    (1979) 
    25 Cal.3d 436
    .) Defendant was advised of his right to file a supplemental brief
    within 30 days of the date of filing of the opening brief. Defendant responded,
    contending he was no longer on probation when he committed new violations of the law
    and thus he could not have violated his probation. We affirm.
    BACKGROUND
    On November 11, 2017, defendant drove a van over a victim, who survived, and
    then defendant and his passenger left the scene.
    On February 26, 2018, the Kern County District Attorney filed an information
    charging defendant with attempted murder (Pen. Code, §§ 664, 187, subd. (a);1 count 1),
    assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and felony hit and run (Veh.
    Code, § 20001, subd. (a); count 3). As to counts 2 and 3, the information alleged
    defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information
    further alleged defendant had suffered two prior “strike” convictions within the meaning
    of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
    On May 14, 2018, the information was amended to allege a prior serious felony
    conviction (§ 667, subd. (a)). Defendant pled no contest to count 1 and admitted the
    two prior strike convictions and the prior serious felony conviction. In exchange, the trial
    court agreed to strike the two prior strike convictions, sentence defendant to 10 years in
    prison (five years on count 1, plus five years for the prior serious felony conviction
    enhancement), suspend execution of sentence, and grant three years of probation with
    one year of jail time as a condition of probation.
    On June 12, 2018, the trial court sentenced defendant as agreed, and awarded him
    300 days of conduct credits.
    1      All statutory references are to the Penal Code unless otherwise noted.
    2.
    About two and one-half years later, on December 23, 2020, a ranch employee
    found defendant and his vehicle parked in front of the ranch’s mechanic’s shop. The
    employee got out of his vehicle and took pictures of both defendant and his vehicle.
    Defendant told the employee his vehicle was stuck, but then defendant got back into his
    vehicle and left. The employee inspected the ranch’s research lab and found the padlock
    cut. Several items, including a “quad” offroad vehicle, were missing from inside. In a
    prior theft two months earlier, a generator had been stolen from a motorhome on the
    ranch premises.
    Around January 18, 2021, Deputy Michael Gelardo executed a search warrant at
    defendant’s home, where he found two quad vehicles and a generator, among many other
    items scattered on the front and back yards. Defendant’s girlfriend admitted a quad
    vehicle had been stolen before Christmas and she had forged a bill of sale for it. The
    ranch employee came to defendant’s home where the search was conducted, and he
    identified a quad vehicle and generator as ranch property. Defendant stated he did not
    steal the items; they had been purchased.
    On February 5, 2021, the probation department filed a declaration letter attesting
    that defendant’s probation period was from June 12, 2018, to June 12, 2021, and that
    defendant had violated the terms of his probation by committing new violations of law, in
    that on January 20, 2021, he was arrested for second degree burglary (§ 459) and
    receiving stolen property (§ 496, subd. (a)). The probation officer recommended that the
    trial court revoke defendant’s probation and sentence defendant to the previously
    imposed and suspended 10-year sentence.
    At a contested revocation hearing on October 28, 2021, the trial court found
    defendant had violated probation. The court revoked probation, ordered into execution
    the previously imposed and suspended 10-year sentence, imposed various fines and fees,
    and awarded 397 days of custody credits.
    On November 23, 2021, defendant filed a notice of appeal.
    3.
    DISCUSSION
    Defendant contends he could not have violated probation because he was no
    longer on probation in December 2020. He explains that his 300 days of custody credits
    shortened his probationary period by 300 days and thus the period had already ended
    when he committed the new violations of law. Defendant is incorrect.
    “In all felony and misdemeanor convictions, … when the defendant has been in
    custody …, all days of custody of the defendant … shall be credited upon his or her term
    of imprisonment ….” (§ 2900.5, subd. (a), italics added.) “ ‘[T]erm of imprisonment’
    includes any period of imprisonment imposed as a condition of probation [e.g., jail
    time] ….” (Id., subd. (c).)2 If the custody credits exceed the term of jail time, the excess
    credits may be applied to “the base fine” (id., subd. (a)); credits are applied first to the
    term of jail time, then to the base fine, but not to the term of probation itself (see ibid.).3
    Here, defendant received the benefit of his 300 days of custody credits when they
    were credited to his one-year jail term imposed as a condition of his three-year probation
    term. He was still required to serve three years of probation from June 12, 2018, to
    2       The inclusion in section 2900.5 of jail time imposed as a condition of probation is
    a result of a 1976 amendment (Stats. 1976, ch. 1045, § 2) that “redefine[d] the ‘term of
    imprisonment,’ i.e., the term against which custody credits are to be applied, to include
    any ‘period of imprisonment imposed as a condition of probation .…’ As a result of this
    amendment, actual time previously served in county jail … would now be credited
    against any new ‘term of imprisonment’ served in the county jail for the same offense,
    including any new jail term imposed as a condition of continuing or reinstating the
    defendant on probation.” (People v. Arnold (2004) 
    33 Cal.4th 294
    , 300–301.)
    3      We note that section 2900.5, subdivision (c) specifically includes imprisonment
    and parole, but does not mention imprisonment and probation: “For the purposes of this
    section, ‘term of imprisonment’ includes any period of imprisonment imposed as a
    condition of probation or otherwise ordered by a court in imposing or suspending the
    imposition of any sentence, and also includes any term of imprisonment, including any
    period of imprisonment prior to release on parole and any period of imprisonment and
    parole, prior to discharge, whether established or fixed by statute, by any court, or by any
    duly authorized administrative agency.”
    4.
    June 12, 2021. Thus, he was on probation when he committed the new violations of law
    in December 2020.
    Having undertaken an examination of the entire record, we find no evidence of
    ineffective assistance of counsel or any other arguable error that would result in a
    disposition more favorable to defendant.
    DISPOSITION
    The judgment is affirmed.
    5.
    

Document Info

Docket Number: F083578

Filed Date: 9/13/2022

Precedential Status: Non-Precedential

Modified Date: 9/13/2022