People v. Dickey CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD231183, SCD212263, SCD227452, IRASCE286737
- Trial judge
- Peter C. Deddeh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), O'Rourke, Cynthia Aaron
Analysis
The trial court denied Dickey's petition for writ of error coram vobis on procedural grounds (wrong forum) and substantive grounds (presentence credits from non-controlling cases do not affect the release date calculated from the controlling case). The Court of Appeal affirmed the order after an independent Wende review found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of error coram vobis on procedural grounds“The trial court denied the petition on procedural grounds because a petition for writ of error coram vobis is not appropriately addressed to the court that rendered judgment.” | unclear | not reached | agree with court agree with court |
Denial of petition for writ of error coram vobis on substantive grounds“Pre-sentence credit awarded in a non-controlling case has no effect on [Dickey's] ultimate release date. The law is clear that [Dickey] is not entitled to have pre-sentence credit in the non-controlling case applied to the controlling case” | unclear | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel must independently review the record for error when no argument is presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel may identify issues that are not reasonably arguable in a no-merit brief.
- relied: Betz v. Pankow (1993) 16 Cal.App.4th 931 — A petition for writ of error coram vobis is addressed to the appellate court, not the trial court.
The appellate opinion: sound with gaps — The opinion is a standard Wende review where counsel found no reasonably arguable issues. The court affirmed without detailed analysis of the substantive legal questions regarding custody credits, relying on the trial court's correct application of the 'controlling case' rule.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Dickey's petition for writ of error coram vobis, which sought recalculation of his prison release date using the larger presentence credit award from a non-controlling case, ruling both that coram vobis lies in the appellate court rather than the sentencing court and that credits in a non-controlling concurrent case do not affect the release date set by the controlling case. On appeal, appointed counsel filed a Wende brief, Dickey filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of error coram vobis on procedural grounds because the writ is addressed to the appellate court, not the trial court that rendered judgment“The trial court denied the petition on procedural grounds because a petition for writ of error coram vobis is not appropriately addressed to the court that rendered judgment.” | unclear | correct | agree with court Betz v. Pankow correctly distinguishes coram nobis (trial court) from coram vobis (appellate court), so the procedural ground is accurate on its face. The opinion does not discuss whether the mislabeled petition should have been construed as one for coram nobis, but because the trial court also reached and rejected the merits, the omission does not affect the result. |
Denial of petition on substantive grounds: presentence credits awarded in a non-controlling concurrent case (SCD212263) cannot be applied to the controlling case (SCD231183) to advance the release date“Pre-sentence credit awarded in a non-controlling case has no effect on [Dickey's] ultimate release date.” | unclear | correct | agree with court Each concurrent sentence is calculated separately and the release date is governed by the controlling case with the longest remaining term after credits; a defendant may not transfer or duplicate credits from a non-controlling case. The trial court's reasoning is consistent with settled California law on dual credits, and the appellate court found no arguable issue after independent review. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the appellate court independently reviews the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-issue brief may identify possible but not reasonably arguable issues for the court's consideration.
- relied: Betz v. Pankow (1993) 16 Cal.App.4th 931 — A petition for writ of error coram nobis is addressed to the trial court; a petition for writ of error coram vobis is addressed to the appellate court.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is not required in an appeal from a postjudgment order where there is no constitutional right to counsel; the court may dismiss if the defendant files no supplemental brief. The court here conducted Wende review anyway without addressing whether it was required, which affords more process than necessary and does not change the outcome.
The appellate opinion: sound with gaps — The opinion reaches a plainly correct result: the procedural ruling tracks Betz v. Pankow and the substantive ruling on controlling versus non-controlling concurrent sentences reflects settled credit law. It does not, however, address whether Wende review applies to an appeal from a postjudgment coram vobis order (People v. Serrano) or independently cite the credit authorities supporting the trial court's merits ruling, leaving the analysis thin though defensible.
Opinion
Filed 10/17/13 P. v. Dickey CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063790
Plaintiff and Respondent, v. (Super. Ct. Nos. SCD231183, SCD212263, SCD227452, IRA M. DICKEY, SCE286737)
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Peter C.
Deddeh, Judge. Affirmed.
Theresa O. Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. INTRODUCTION On the same day in March 2011, the trial court sentenced Ira M. Dickey in four separate cases and awarded him differing amounts of presentence custody credit in each case. In February 2013 Dickey filed a petition for writ of error coram vobis seeking an order directing the Department of Corrections and Rehabilitation to recalculate his release date based on the case in which he had earned the greatest number of presentence custody credits. The trial court denied the petition on both procedural and substantive grounds.
Dickey appeals. His appointed appellate counsel filed a brief requesting we independently review the record for error. (See People v. Wende (1979) 25 Cal.3d 436, 441-442.) Having done so and having identified no reasonably arguable appellate issues, we affirm the judgment.
BACKGROUND
Case No. SCD212263 On September 23, 2008, Dickey pleaded guilty to owning and operating a chop shop (Veh. Code, § 10801) and being a felon in possession of a firearm (formerly Pen.
Code, § 12021, subd. (a)(1), now Pen. Code, § 29800, subd. (a)(1)). The trial court sentenced him to four years and eight months in prison, but stayed execution of the sentence and placed him on three years of formal probation. The court also awarded him 348 days of presentence custody credit, consisting of 232 days of actual custody credit and 116 days of conduct credit under Penal Code section 4019.
2 On March 16, 2011, the court revoked Dickey's probation and imposed the previously stayed sentence of four years and eight months in prison. The court awarded him 661 days of presentence custody credit, consisting of 331 days of actual custody credit and 330 days of conduct credit under Penal Code section 4019.
Case No. SCE286737 On July 14, 2009, Dickey pleaded guilty to fraudulently using a contractor's license number (Bus. & Prof. Code, § 7027.3). The court suspended imposition of sentence and placed him on five years of formal probation.
On March 16, 2011, the court revoked Dickey's probation and sentenced him to three years in prison to run concurrently with the sentences in case numbers SCD231183, SCD227452, and SCD212263. The court awarded him 189 days of presentence custody credit, consisting of 95 days of actual custody credit and 94 days of conduct credit under Penal Code section 4019.
Case No. SCD227452 On January 28, 2011, Dickey pleaded guilty to unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). On March 16, 2011, the court sentenced him to eight months in prison to run consecutive to his sentence in case number SCD231183.
The court did not award him any presentence custody credit.
Case No. SCD231183 On January 28, 2011, Dickey pleaded guilty to possessing a controlled substance for sale (Health & Saf. Code, § 11378) and admitted having a prior conviction for the same offense (Health & Saf. Code, § 11370.2). On March 16, 2011, the court sentenced 3 him to five years in prison. The court awarded him 196 days of custody credit, consisting of 98 days of actual custody credit and 98 days of conduct credit under Penal Code section 2933.1.
Writ of Error Coram Vobis In February 2013, Dickey filed a petition for writ of error coram vobis requesting the trial court direct the Department of Corrections and Rehabilitation to recalculate his release date based on the 661 days of presentence credit awarded in case number SCD212263, rather than the 196 days of presentence credit awarded in case number SCD231183.
The trial court denied the petition on procedural grounds because a petition for writ of error coram vobis is not appropriately addressed to the court that rendered judgment. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 941, fn. 5 [a petition for writ of error coram nobis is addressed to the trial court and a petition for writ of error coram vobis is addressed to the appellate court].) The trial court also denied the petition on substantive grounds, explaining:
"[W]hen sentences in two or more cases are ordered to run concurrently, the 'controlling case' is the case with the longest period of imprisonment after deducting the total credits from the sentence imposed. . . . Case No. SCD 231183 is the controlling case, with the sentence in Case No. SCD 227452 running consecutively[.] . . . Case Nos.
SCD 212263 and SCE 286737 are non-controlling cases. [¶] . . . Pre-sentence credit awarded in a non-controlling case has no effect on [Dickey's] ultimate release date. The law is clear that [Dickey] is not entitled to have pre-sentence credit in the non-controlling 4 case applied to the controlling case, and that he may not receive cumulative credit for the controlling and non-controlling cases. [Citations.]
"Even though sentences in two or more cases are served concurrently, each concurrent sentence is separately calculated. Here, the sentence in the controlling case, Case No. SCD 231183, is used to determine the release date. Contrary to [Dickey's]
argument, credit against the sentence in a non-controlling case, such as Case No. [SCD]
212263, has no effect on how long [Dickey] must remain incarcerated. This is because when [Dickey] has completed the sentence in the non-controlling case, minus any credit against it, he would still need to serve the time (if any) left in the controlling case." (Bold face omitted.)
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal and instead requested we review the record for error as mandated by People v. Wende, supra, 25 Cal.3d at pp. 441-442.
Counsel further identified two possible, but not reasonably arguable issues. (See Anders v. California (1967) 386 U.S. 738, 744.) These issues were: (1) whether the trial court erred in denying the petition for writ of error coram vobis on procedural grounds; and (2)
whether the trial court erred in denying Dickey's request to have his release date recalculated based on the additional presentence custody credits awarded in SCD212263.
We granted Dickey permission to file a supplemental brief on his own behalf. He did not do so.
5 As requested by counsel, we reviewed the record for error and did not find any reasonably arguable appellate issues. Dickey has been competently represented by counsel on this appeal.
DISPOSITION
The order is affirmed.
MCCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
Cites, in this corpus
- Betz v. Pankow A055091 · 1993-06-18
- People v. Wende Crim. 20851 · 1979-10-12