P. v. Hanoum CA1/5 ( 2013 )

Filed 7/24/13 P. v. Hanoum CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A136840
v. (Sonoma County
Super. Ct. No. SCR616432)
NATHAN DANIEL HANOUM,
Defendant and Appellant.
______________________________________/
While appellant Nathan Daniel Hanoum was on parole, the prosecution charged
him with committing assault with force likely to commit great bodily injury (Pen. Code, §
245, subd. (a)(1))1 and with inflicting corporal injury on Jane Doe (§ 273.5, subd. (a)) in
case No. SCR616432.
Appellant pleaded no contest to inflicting corporal injury (§ 273.5, subd. (a)) on
the condition he serve 180 days in county jail and that probation terminate at the
conclusion of his sentence. At the plea hearing, the court advised appellant his 180-day
sentence would be completed on July 7, 2012, and probation would terminate that same
day. The court set a hearing for July 6, 2012, to award appellant credit for time served;
1
Unless otherwise noted, all further statutory references are to the Penal Code.
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formal sentencing would occur on July 13, 2012, to enable the probation department to
prepare a probation report before sentencing.
On July 6, 2012 — and pursuant to the previous court order — the court ordered
appellant released from custody on July 7, 2012, and ordered him to return on July 13,
2012, for sentencing. The parties agreed appellant’s sentence would be completed on
July 7, 2012, before a probation report could be completed; the prosecutor informed the
court that “[b]ecause of the domestic violence, we need the probation report, and he was
to be back then [July 13, 2012] for the sentencing. And it leaves him about a week, with
a Cruz2 waiver, to make sure that nothing happens in between. Because if he has any
new incidents happen, then all deals are off, and he could be sentenced to State Prison.”
Appellant said he understood and agreed. On the day he was released, appellant’s parole
hold ended.
After he was released from custody, appellant was charged with, among other
things, misdemeanor battery on Doe (§ 243, subd. (e)(1)) in case No. SCR620077 and
was to be arraigned on July 13, 2012. On July 13, 2012, appellant failed to appear for
arraignment in case No. SCR620077 and sentencing on case No. SCR616432. The court
issued a bench warrant and appellant was arrested on August 2, 2012. Parole placed a
new hold on appellant and he received a 35-day parole violation. At an August 16, 2012
hearing, the parties advised the court the prosecution was willing to dismiss case No.
SCR620077 with a Harvey3 waiver and have it “sent back to the probation officer for a
full report. Based on the Cruz violation, it will be an open plea.” The court ordered the
probation department to prepare a report.
On October 15, 2012, the court sentenced appellant to four years in state prison for
the violation of section 273.5, subdivision (a). The court awarded appellant 34 days of
credits: 17 actual credits and 17 conduct credits. When the court calculated the credits,
the following exchange occurred:
“THE COURT: Okay. Are the credits 74 actual, 74 conduct?
2
People v. Cruz (1988) 44 Cal.3d 1247, 1254.
3
People v. Harvey (1979) 25 Cal.3d 754, 758.
2
“PROBATION OFFICER: I have 17 plus 17.
“THE COURT: I was looking at the file, and it says that he was arrested on
8/2/2012. [¶] Was that on a parole hold?
“PROBATION OFFICER: That was on the parole hold. Should the Court run –
“THE COURT: So it’s 17 for this case then?
“PROBATION OFFICER: Yes.
“THE COURT: 17 starting – when are you coming in? Well, 17 days ago, that
would be from – so the parole hold was up the end of September?
“[PROSECUTOR]: Yes. When he was released from custody, Your Honor, that
was the day his parole hold had ended.
“THE COURT: But then when he absconded and failed to appear for sentencing,
did he get another parole violation?
“PROBATION OFFICER: He did. He got 35 days.
“THE COURT: Okay. . . .”
Appellant timely appealed. Then he filed an ex parte motion pursuant to People v.
Fares (1993) 16 Cal.App.4th 954, 958 requesting the court correct his presentence
credits. He argued he was entitled to 115 days of credit, not 34. He explained he spent
75 days in county jail between his arrest on August 2, 2012, and sentencing on October
15, 2012, and that with conduct credits, the total credit earned was 150. From 150,
appellant subtracted 35 days (for the 35-day parole violation), entitling him to 115 days
of credit.
In a May 20, 2013 amended ruling, the court denied appellant’s Fares motion. It
explained appellant was “not entitled to a total of 115 days of presentence credit, as that
would result in an improper award of dual credits.” The court, however, awarded
appellant 76 days of credit, comprised of 38 actual credits and 38 conduct credits.4 The
amended ruling attached the probation department’s credits calculation, which noted that
4
We augment the record to include the court’s May 10, 2013 initial ruling and May
20, 2013 amended ruling on appellant’s Fares motion. (Cal. Rules of Court, rule
8.155(a)(1)(A).)
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appellant was not entitled to dual credits pursuant to section 2900.5, subdivision (b),
which provides, “For the purposes of this section, credit shall be given only where the
custody to be credited is attributable to proceedings related to the same conduct for which
the defendant has been convicted. Credit shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive sentence is imposed.”
DISCUSSION
We appointed counsel to represent appellant on appeal. Counsel asked this court
to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende). Pursuant to Anders v. California (1967) 386 U.S. 738, counsel listed two
possible, but not arguable, issues: (1) “Did the trial court err in limiting the number of
credits which appellant received?” and (2) “Was appellant entitled to the credits
originally awarded to him which fulfilled his sentence on July 7, 2013, the date of his
release and the date upon which his probation was supposed to terminate, or did his
failure to appear for formal sentencing on July 13, 2012, in accordance with his Cruz
waiver eliminate his right to claim those credits even though the parties had agreed
service of those days would fulfill his sentence and end his probation?”
Counsel informed appellant he had the right to file a supplemental brief on his
own behalf, but appellant declined to do so.
We have examined the record pursuant to Wende and considered the possible
issues referred to by appointed counsel. We find no reasonably arguable appellate issue.
Appellate counsel has competently represented appellant.
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The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Bruiniers, J.
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