The People v. Spencer CA5

Filed 10/3/13 P. v. Spencer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065770 Plaintiff and Respondent, (Super. Ct. No. F10904772) v.

CLAUDE CHARLES SPENCER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge. (Retired judge of the Fresno County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Kane, J. and Franson, J.

Appellant, Claude Charles Spencer, pled no contest to transportation of cocaine base (count 1/Health & Saf. Code, § 11352, subd. (a)); possession for sale of cocaine base (count 2/Health & Saf. Code, § 11351); and he admitted five prior prison term enhancements (Pen. Code, § 667.5, subd. (b))1 and two prior conviction enhancements (Health & Saf. Code, § 11370.2). On appeal, Spencer contends: 1) his abstract of judgment contains two clerical errors, and 2) the court erred by its failure to recalculate his presentence custody credit. We find merit to Spencer’s first contention and direct the court to issue a corrected abstract of judgment. In all other respects, we affirm. FACTS On September 16, 2010, Fresno police officers arrested Spencer during a traffic stop after they found a glass pipe with white residue and a burnt tip, and a baggie containing 1.29 grams of cocaine base on his person. Spencer admitted to the officers he was taking the cocaine base to a hotel to sell it for $50. On September 20, 2010, the district attorney filed a complaint charging Spencer with the counts and enhancements he pled to. On March 28, 2011, Spencer entered his plea in this matter. On October 25, 2011, the court struck four prior prison term enhancements and sentenced Spencer to a six-year local term: the aggravated term of five years on count 1, a stayed four-year term on count 2, a one-year prior prison term enhancement, and two stayed three-year prior conviction enhancements. On June 19, 2012, Spencer filed a motion seeking compassionate release pursuant to section 1170, subdivision (e), which the court denied on July 5, 2012. On July 11, 2012, the court awarded Spencer 538 days of presentence custody credit consisting of 269 days of presentence actual custody credit and 269 days of