People v. Hendrix CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 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

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.

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.