People v. Hendrix CA5 ( 2020 )

Filed 11/4/20 P. v. Hendrix 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F079934
Plaintiff and Respondent,
(Super. Ct. No. F16907410)
v.
DAVON TERRILE HENDRIX, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
Judge.
Richard Jay Moller, 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 Franson, Acting P.J., Smith, J. and Meehan, J.
Appointed counsel for defendant Davon Terrile Hendrix 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,
asserting he is entitled to presentence custody credits beginning on May 9, 2019, and that
his custodian incorrectly calculated his release date. Finding no arguable error that would
result in a disposition more favorable to defendant, we affirm.
BACKGROUND
On November 11, 2016, defendant parked his 2002 BMW in the back of a
convenience store in Fresno. Defendant walked into the store and entered the office
where he took a plastic bank bag containing $71,777. He placed the bag under his shirt,
exited out the back door and drove away. Defendant subsequently was arrested and told
the police that he committed the theft on his own.1
On December 14, 2016, the Fresno County District Attorney filed a felony
complaint charging defendant with grand theft of personal property (Pen. Code, § 487,
subd. (a);2 count 1), and second degree commercial burglary (§ 459/460, subd. (b);
count 2). With respect to count 1, the district attorney alleged the value of the property
exceeded $65,000 (§ 12022.6, subd. (a)(1)). Additionally, the district attorney alleged
defendant had suffered four prior prison terms (§ 667.5, subd. (b)).
On February 22, 2018, defendant pled no contest to count 1 pursuant to People v.
West (1970) 3 Cal.3d 595, on the condition he could argue for a split sentence of
three years. The remaining counts and allegations were dismissed.
The matter came on for sentencing on May 22, 2018. It is unclear what occurred.
The reporter’s transcript for that date indicates defendant failed to appear and a bench
1 The facts underlying the crimes are taken from the probation officer’s report.
2 Subsequent statutory references are to the Penal Code.
2.
warrant was issued. However, a minute order for that date states the matter was heard by
a different judge, was continued at defendant’s request, and that new counsel was
appointed for purposes of determining whether there were grounds for withdrawing
defendant’s plea.
The matter again came on for hearing on June 26, 2018, before the judge who took
defendant’s plea. The court and counsel expressed confusion regarding the state of
defendant’s representation. The court ultimately resolved to conduct a Marsden3 hearing
to determine whether defendant’s prior counsel should be relieved. The matter was
continued.
At the continued hearing date of July 18, 2018, defendant failed to appear and a
bench warrant was issued.
The matter did not come on for hearing again until May 15, 2019. On that date,
the court determined that defendant’s new counsel remained appointed for the limited
purpose of determining whether there were grounds for withdrawing the plea, and the
matter was again set for a Marsden hearing.
On May 23, 2019, the court conducted a Marsden hearing and denied defendant’s
request for new counsel. The matter was set for sentencing and for hearing on a motion
to withdraw the plea.
On June 21, 2019, defendant withdrew his request for counsel to look into
withdrawing his plea. The court heard argument on sentencing. Defendant requested a
hearing on the issue of restitution. Ultimately, sentencing was continued at the request of
defense counsel.
On July 12, 2019, the matter again came on for sentencing, as well as for a hearing
on the amount of restitution. The People requested a continuance of the restitution
hearing. Defense counsel requested that the sentencing and the restitution hearing be
3 People v. Marsden (1970) 2 Cal.3d 118.
3.
conducted at the same time. Due to scheduling conflicts, the hearing could not
immediately be reset. However, the court noted that defendant was then serving a
sentence in another case and was not receiving time credits in the instant case while
sentencing was pending. The People therefore agreed to allow defendant to accrue time
credits from the date of the July 12, 2019 hearing. The court explained to defendant,
“You’re technically you’re [sic] not entitled to those because you’re a sentenced prisoner
on another matter but with the agreement of the District Attorney, I’m willing to start
giving you time credits today on this case.” The matter was then continued.
A restitution hearing was held on August 13, 2019. Following testimony from the
probation officer, the court declined to order restitution but offered the People an
opportunity to present testimony from the victims at a later date. Sentencing was
continued.
On September 5, 2019, the matter again came on for sentencing. The parties
stipulated to a restitution amount of $25,000. The court then sentenced defendant on
count 1 to the upper term of three years, to be served in county jail. The court declined to
impose a split term on the ground that defendant was on supervised release at the time of
the offense, had multiple prior violations of supervision, and had an extensive criminal
history. The court awarded defendant time credits for 58 actual days of credit and
58 days of conduct credit, for a total of 116 days. The court denied defendant’s request
for time credits dating back to December 19, 2018, the date on which he was taken into
custody in another case. The court also denied defendant’s request for time credits dating
back to February 2, 2019, the date on which he sent a section 1381 demand to the court.
In light of the significant amount of restitution, the court waived all other fines and fees.
On September 6, 2019, defendant timely filed a notice of appeal based on the
sentence or other matters occurring after the plea that do not affect the validity of the
plea.
4.
DISCUSSION
In a letter brief, defendant contends that he was entitled to presentence credits
beginning on May 9, 2019. Defendant is incorrect. He is not entitled to presentence
credits in the instant case for time served in custody that is attributable to a different
proceeding. (§ 2900.5, subd. (b).) Although defendant states he was held in Fresno
County pending sentencing between May 9, 2019, and the September 5, 2019 sentencing
hearing, he was a sentenced prisoner in another case during that period.4 Defendant
therefore was not entitled to receive time credits until September 5, 2019, but nonetheless
was afforded credits beginning on July 12, 2019, as agreed to by the parties and the court.
The record reflects that the court ordered time credits pursuant to that agreement.
To the extent the court erred in calculating credits, it did so in defendant’s favor.
The period from and including July 12, 2019, to and including September 5, 2019,
constitutes 56 days. Defendant was entitled to one additional day of credit for time spent
in custody in 2016, for total actual credits of 57 days. Nonetheless, the probation
department calculated that defendant was entitled to 58 actual days of credit, and the
People did not object to that calculation. The court therefore orally held that defendant
was entitled to 58 days of actual credit and 58 days of conduct credit, for a total of
116 days. The abstract of judgment correctly reflects the court’s oral pronouncement of
judgment. Because the People agreed to this calculation, we will not order it corrected.
Finally, to the extent defendant believes his custodian has miscalculated his
release date, he may raise this issue in a petition for writ of habeas corpus, as it is not
properly before us in this direct appeal of the trial court’s judgment.
4 On December 19, 2018, defendant became a sentenced prisoner in Glendale
Superior Court case No. GA100860-01. He remained a sentenced prisoner in that case on
September 5, 2019, the date of sentencing in the instant case.
5.
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.
6.