People v. Donnell CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD235326, SCD245608
- Trial judge
- Robert J. Trentacosta
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), McINTYRE, Patricia D. Benke
Analysis
The trial court revoked probation for a felony resisting officer charge and sentenced the defendant to two years in local prison, awarding 550 days of presentence custody credit. The Court of Appeal affirmed the judgment after finding no reasonably arguable issues on independent review under People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of presentence conduct credits for 88 days spent in a residential treatment program“Was appellant correctly denied presentence conduct credits for her 88 days in a residential treatment program? (People v. Palazuelos (1996) 180 Cal.App.3d 962.)” | unclear | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel when no issues are raised.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify any potentially meritorious issues in a no-merit brief.
- relied: People v. Palazuelos (1996) 180 Cal.App.3d 962 — Cited by counsel as authority regarding presentence conduct credits for time in residential treatment.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court revoked probation in Donnell's felony case for forcibly resisting an officer (Pen. Code, § 69) after she admitted failing to appear at a Behavioral Health Court review hearing, imposed the two-year middle term in local prison with 550 days of presentence credit (as modified by stipulation), and terminated probation in the companion misdemeanor case with release for time served. On appeal, appointed counsel filed a Wende brief identifying only one possible issue (denial of conduct credits for 88 days in residential treatment), Donnell 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 |
|---|---|---|---|
Revocation of probation in case No. SCD235326 and denial of further probation, with imposition of the two-year middle term in local prison“The court revoked probation in case No. SCD235326 and denied further probation noting there was no reasonable probability to believe she can or will comply because she had been tried and failed to complete two prior grants of probation.” | unclear | correct | agree with court Donnell waived an evidentiary hearing and admitted the violation, and the court's reasons for denying reinstatement (two failed prior grants) are the kind of discretionary judgment reviewed only for abuse. Nothing in the opinion suggests an arguable error, and the court conducted the independent review Wende requires. |
Award of presentence custody credits (319 actual days plus 231 conduct days, totaling 550 days after modification), including denial of conduct credits for 88 days spent in a residential treatment program“"Was appellant correctly denied presentence conduct credits for her 88 days in a residential treatment program? (People v. Palazuelos (1996) 180 Cal.App.3d 962.)"” | unclear | correct | agree with court Palazuelos holds that time spent in a residential treatment facility as a condition of probation earns actual custody credit under section 2900.5 but not section 4019 conduct credit, so denial of conduct credit for the 88 treatment days was proper. The remaining credit dispute was mooted when the trial court granted the additional 117 days by stipulation. The opinion's date for Palazuelos (1996) appears to be a typographical error; 180 Cal.App.3d places the decision in 1986. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- relied: People v. Palazuelos (1986) 180 Cal.App.3d 962 — Time spent in a residential treatment facility as a probation condition counts as custody for section 2900.5 actual credit but does not qualify for section 4019 conduct credits.
The appellate opinion: sound — The opinion follows the Wende procedure: it summarizes the facts and procedural history, notes the single Anders issue, confirms Donnell was given a chance to file a supplemental brief, and states that independent review disclosed no arguable issues. The only blemish is a misdated citation to Palazuelos (1996 rather than 1986), which does not affect the result since that case supports denial of conduct credits for residential treatment time.
Opinion
Filed 5/23/14 P. v. Donnell 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, D064377
Plaintiff and Respondent, v. (Super. Ct. Nos. SCD235326, SCD245608) ERICA LYNN DONNELL, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
Trentacosta, Judge. Affirmed.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In separate cases, Erica Lynn Donnell (aka Erica Lynn Bruce) pled guilty to one felony count of forcibly resisting a police officer (Pen. Code, § 69)1 and one 1 All further statutory references are to the Penal Code. misdemeanor count of resisting a police officer (§ 148, subd. (a)(1)). After admitting she violated probation in both cases by failing to appear in court as required, the court imposed the two-year middle term to be served in local prison for the felony case (case No. SCD235326). Against the sentence, the court awarded Donnell 433 days of presentence custody credit consisting of 319 days actual custody credit and 114 days of conduct credit. The court subsequently modified the judgment to award a total of 550 days of presentence custody credit after adding 117 days of conduct credit. The court terminated probation in the misdemeanor case (case No. SCD245608) and released her from custody in that case alone based on time served.
Donnell appeals. Her 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
A
Case No. SCD235326 According to the probation report, a San Diego Police officer encountered an apparently intoxicated Donnell in an alley on July 12, 2011. When he attempted to arrest her for an outstanding warrant, Donnell resisted by refusing to cooperate, hitting the officer and burning his arm with a cigarette lighter.
Donnell pleaded guilty to one felony count of knowingly resisting, by use of force and violence, an executive officer in the performance of his duty. (§ 69.) She was placed 2 on three years formal probation with 365 days in custody. However, after 180 days she was to be released to an approved treatment facility.
B
Case No. SCD245608 Donnell later pleaded guilty to one misdemeanor count of resisting a police officer while he was attempting to arrest her on January 10, 2013. (§148, subd. (a)(1).) In exchange, she was granted probation in case No. SCD245608, with terms including 365 days in custody and continued probation in case No. SCD235326. Probation was conditioned on her compliance with all terms and conditions of the Behavioral Health Court (BHC). As part of the application for acceptance into the BHC, Donnell agreed to follow all the rules and requirements of the program and to comply with the rules of the court, the probation officer, case manager and treatment team.
C
Probation Violation and Revocation According to a supplemental probation report, after being accepted into BHC in April 2013, Donnell absconded and failed to appear at a scheduled BHC review hearing.
Donnell waived her right to an evidentiary hearing and admitted she violated the terms and conditions of probation by failing to appear in court as ordered.
The court revoked probation in case No. SCD235326 and denied further probation noting there was no reasonable probability to believe she can or will comply because she had been tried and failed to complete two prior grants of probation. The court sentenced her to two years in local prison with custody credits of 319 days plus 114 days of conduct 3 credits for a total of 433 days. Subsequently, pursuant to a stipulation, the court found Donnell was entitled to receive an additional 117 days of conduct credits for total custody credit of 550 days.
The court terminated probation in case No. SCD245608. She was committed to local custody for 205 days, but was released from custody only on this case based on credit for time served of 103 actual days plus 102 days of conduct credit for a total of 205 days.
D
Appeal Donnell appeals challenging the sentence or other matters occurring after the plea.
Her appointed appellate counsel filed an opening brief raising a single issue seeking additional presentence conduct credits in case No. SCD235326. This issue was rendered moot when the trial court granted the additional conduct credits. On the motion of appointed appellate counsel, we struck the original opening brief and permitted counsel to file a brief under People v. Wende, supra, 25 Cal.3d 436.
DISCUSSION
Appointed appellate counsel has 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 pages 441-442. Consistent with Anders v. California (1967) 386 U.S. 738, 744, counsel identified one possible but not reasonably arguable issue (Anders issue):
4 (1) "Was appellant correctly denied presentence conduct credits for her 88 days in a residential treatment program? (People v. Palazuelos (1996) 180 Cal.App.3d 962.)"
We granted Donnell permission to file a supplemental brief on her own behalf.
She did not do so.
As requested by counsel, we reviewed the record for error and did not find any reasonably arguable appellate issues. Donnell has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
MCINTYRE, J.
Cites, in this corpus
- People v. Palazuelos B014289 · 1986-05-12
- People v. Wende Crim. 20851 · 1979-10-12