People v. Gates CA3

Filed 8/29/14 P. v. Gates 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent, C074510
v. (Super. Ct. No. 12F06398)
JOHNNY GATES,
Defendant and Appellant.
Appointed counsel for defendant Johnny Gates asks this court to review the
record and determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal. 3d 436 (Wende).) Defendant filed a supplemental brief explaining
the records of the Department of Corrections and Rehabilitation fail to reflect the plea
bargain provided that “credits from [case No. 11F03470 were to run] concurrent and
given on the new [current] case.” (Italics added.) We conclude the record does not
support defendant’s claim the plea bargain provided he was to receive custody credits
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in the current case for time served in a prior case. After reviewing the record, we
affirm the judgment.
On October 18, 2009, defendant entered the victim’s home through a broken
dining room window and stole items from the bedroom dresser. Defendant’s fingerprint
was found on the dresser.
Defendant entered a no contest plea to first degree burglary (Pen. Code, § 459)
in exchange for a four-year state prison term to run concurrently to the term defendant
was serving in case No. 11F03470. The court sentenced defendant accordingly and
awarded a total of 53 days of presentence custody credit towards the current case.
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code,
§ 1237.5.)
Counsel filed an opening brief that sets forth the facts of the case and requests
this court to review the record and determine whether there are any arguable issues on
appeal. (Wende, supra, 25 Cal. 3d 436.) Defendant filed a supplemental brief addressing
the issue of credits that should have been given as part of the plea bargain. He states the
records of the Department of Corrections and Rehabilitation fail to reflect the plea
bargain provided that “credits from [case No. 11F03470 were to run] concurrent and
given on the new [current] case.” (Italics added.)
The plea bargain provided that the four-year midterm sentence in the current
case was to run concurrently to the sentence defendant was serving in case
No. 11F03470. When defendant entered his plea, the trial court commented that
“[w]e need to look into the other case and this case a little bit further to make sure
we have the credits fully understood.” Defendant waived referral to the probation
department for a report.
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At sentencing, after the trial court imposed the term and awarded 53 days of credit
on the current case, defense counsel stated: “If I could just inquire from madam clerk if
there is any further information on the amount of credits he accumulated on 11F03470.”
The clerk had a note apparently from another clerk but could not read the handwriting
and neither could the trial court. The court commented, “[I]t’s clear that this is a
concurrent sentence with the 11F03470 case. I indicated what credits [defendant] has
for this case. Post sentencing credits are to be determined by the Department of
Corrections.”
When concurrent sentences are imposed at the same time, the general rule is
that custody credit is awarded against each case. (People v. Bruner (1995) 9 Cal. 4th
1178, 1192, fn. 9.) However, “[i]f an offender is in pretrial detention awaiting trial
for two unrelated crimes, he [or she] ordinarily may receive credit for such custody
against only one eventual sentence. Once the pretrial custody is credited against the
sentence for one of the crimes, it, in effect, becomes part of the sentence . . . . In
such circumstances, the pretrial custody ceases to be ‘attributable’ to the second
crime, thus prohibiting its being credited against the sentence subsequently imposed
for that crime. [Citation.]” (In re Marquez (2003) 30 Cal. 4th 14, 21.)
Here, the record reflects the sentences were to run concurrently but does not
include any information concerning the sentence defendant was serving in case
No. 11F03470. The record does not support defendant’s claim the plea bargain
provided he was to receive custody credit in the current case for time served in case
No. 11F03470. Thus, we reject defendant’s contention.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
BLEASE , J.
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