People v. Rabbitt CA3 ( 2022 )

Filed 7/26/22 P. v. Rabbitt CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yuba)
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THE PEOPLE, C094637
Plaintiff and Respondent, (Super. Ct. Nos. CRF20752,
CRF2101131)
v.
THOMAS CECIL RABBITT II,
Defendant and Appellant.
Appointed counsel for defendant Thomas Cecil Rabbitt II asked this court to
conduct an independent review of the record to determine whether there are any arguable
issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error
that would result in a disposition more favorable to defendant, we affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
In case No. CRF-20-752 (752), during a traffic stop of defendant, a Yuba County
police officer conducted an inventory search and found over 37 grams of individually
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bagged methamphetamine and scales. Defendant pleaded guilty to possession for sale of
methamphetamine (Health & Saf. Code, § 11378) in exchange for a maximum two-year
(midterm) sentence. Defendant failed to appear at sentencing. As a result of his failure
to appear, defendant agreed to the upper term of three years.
In case No. CRF-21-131 (131), while sentencing was pending on case No. 752,
defendant was again found in possession of methamphetamine. Defendant pleaded no
contest to possession of methamphetamine in exchange for eight months consecutive to
the term in case No. 752.
At sentencing, the court imposed the agreed to prison terms in each case and
dismissed the remaining charges in case No. 752. In case No. 752, the court imposed
$300 restitution fine (Pen. Code, § 1202.4 - undesignated statutory references are to the
Penal Code) and imposed and stayed a $300 parole revocation fine (§ 1202.45), $40 court
security fee (§ 1465.8), $30 conviction assessment (Gov. Code, § 70373), $705 drug
program fee (Health & Saf. Code, § 11372.5, subd. (a)(d)), and $50 lab fee (Health &
Saf. Code, § 11372.7, subd. (a)). The court awarded defendant 124 days of custody
credits. In case No. 131, the court noted defendant was not entitled to any custody credits
in that case, and then stated: “Restitution fine of $300 to run concurrent [to] his other
case pursuant to 1202.5. An additional $300 is suspended, suspension lifted upon
revocation of parole.” The court also imposed the $705 drug program fee, $40 court
security fee and $30 conviction assessment and stated all of those fines would be
“concurrent to the other case.” The People did not object. The abstract of judgment
reflects the fines and fees imposed in case No. 752, and does not indicate any fines and
fees imposed in case No. 131 or that the fines are “concurrent.” The minute order does
indicate the fines are concurrent.
Defendant did not obtain a certificate of probable cause.
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DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief within 30 days from the date the opening brief was filed.
More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the record, we note an error related to the
fines in case No. 131. The court indicated all the fines in that case, including the
restitution fines, would run concurrent with the sentence in case No. 752. To run
sentences concurrently means the terms will be served simultaneously. (Black’s Law
Dictionary (11th ed. 2019).) A fine cannot run concurrent to a term of imprisonment, it
must be converted to custody time first. Section 1205 empowers the court to convert a
fine to custody time and sets a conversion rate of no more than $125 per day. (§ 1205,
subd. (a).) Restitution fines and orders are explicitly excluded from the authority granted
in section 1205. (§ 1205, subd. (e).) Thus, the court could not have run the restitution
fines “concurrent” to the custody time. In addition, the court did not convert any of the
fines to days of imprisonment. The People did not object to running any of the fines
“concurrent” or the failure to convert the fines to custody time, therefore any claim as to
these errors would be forfeited. (People v. Tillman (2000) 22 Cal.4th 300.) Nor would
correction of this error result in a disposition more favorable to defendant. We address
the error because we have seen this error in an increasing number of cases.
After reviewing the record, we have found no arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
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HULL, Acting P. J.
We concur:
MAURO, J.
KRAUSE, J.
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