P. v. Greer 5/15/09 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B205392

Case Date: 07/09/2009

Preview:Filed 5/15/09 P. v. Greer CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. DONALD W. GREER, Defendant and Appellant.

B205392 (Los Angeles County Super. Ct. No. BA280774)

APPEAL from a sentence of the Superior Court of Los Angeles County, Marsha Revel, Judge. Affirmed, in part, reversed, in part, and remanded with instructions. Marcia R. Clark for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION Defendant and appellant Donald Greer (defendant) pleaded no contest to charges of possession of a deadly weapon and possession of a controlled substance. After a lengthy delay, the trial court sentenced defendant to six years in state prison and awarded him 394 days of presentence custody credit. The trial court also issued a certificate of probable cause allowing defendant to challenge his sentence on appeal. On appeal, counsel for defendant filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting this court to review independently the entire record. Defendants counsel advised him of the nature of the brief filed on his behalf and of his right to file a supplemental brief. Defendant filed a handwritten supplemental brief contending, inter alia, that he was entitled to presentence custody credit for the entire period he was in custody awaiting sentence in this case, i.e., substantially more credit than awarded by the trial court. After reviewing the entire record, we requested that counsel of record for the parties file letter briefs addressing only the presentence custody credit issue raised by defendants supplemental brief. 1 We received the parties letter briefs and filed our opinion on January 23, 2009. Defendant then filed a petition for rehearing, which we granted on February 21, 2009. We requested further letter briefing from the parties and, after review of those briefs, we hold that the trial court properly denied presentence custody credit for the period defendant was also remanded to custody in a subsequent, unrelated case. We further hold that the trial court failed to award defendant presentence custody credit for the period of time from the date of defendants arrest to the date he posted bail and for the period of time from the date he was remanded in this case to the date he was remanded in Defendants request for judicial notice is granted. Based on our review of the entire record as required by People v. Wende, supra, 25 Cal.3d 436, we have identified a single arguable issue concerning the trial courts award of presentence custody credit, but there are no other arguable issues concerning defendants judgment of conviction or sentence.
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the subsequent, unrelated case. We also hold that the trial court must determine the date defendant was paroled or became eligible for parole in the subsequent, unrelated case and award defendant presentence custody credit from that date through the date he was sentenced in this case. We therefore reverse the award of presentence custody credit and remand this case to the trial court with instructions to amend the abstract of judgment to reflect the correct amount of presentence custody credit. In all other respects, the judgment of conviction and sentence are affirmed.

PROCEDURAL BACKGROUND Defendant was arrested in this case on March 6, 2005, and charged with possession of a deadly weapon and possession for sale of a controlled substance. According to the docket in this case, defendant posted bail on March 14, 2005.2 Defendant apparently remained free on bail through the May 8, 2006, hearing in this case. On May 19, 2006, however, defendant was arrested for committing four narcoticsrelated offenses (the second case [No. SA060525]). Defendant posted bail in the second case and was released from custody on or about May 20, 2006. Less than a week later, on May 24, 2006, defendant was again arrested for committing narcotics-related offenses (the third case [No. LA052510]). He was arraigned in the third case on May 26, 2006, and remanded to custody in that case. At a hearing in this case on June 2, 2006, the trial court exonerated bail and reset it at $20,000 based on defendants arrest in the third case. Defendant was remanded to custody in this case and the trial court issued a "temporary commitment."

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We have obtained a copy of the trial court docket in this case and, on our own motion, take judicial notice of it. (Evid. Code,

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