The People v. Wallace CA6

Filed 10/3/13 P. v. Wallace CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038930 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F11498)

v.

TRAISEN RAY WALLACE,

Defendant and Appellant.

Defendant Traisen Ray Wallace was placed on probation after pleading guilty to possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and selling, transporting, or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)). Thereafter, defendant violated probation and the trial court sentenced him to three years in prison. On appeal, defendant contends, and the Attorney General concedes, that the trial court erred by (1) failing to award an additional 180 days of actual custody credit and (2) limiting his conduct credit to 20 percent. We agree that the concessions are appropriate, and we will therefore modify the judgment. BACKGROUND  In June 2005, the District Attorney filed an information charging defendant with possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1) and selling,

transporting, or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a); count 2). The information further alleged that at the time the offenses were committed, defendant was released from custody on bail or on his own recognizance (Pen. Code, § 12022.11). On July 21, 2005, defendant pleaded guilty to both counts, and the enhancements were stricken as to both counts. The trial court suspended imposition of sentence and placed defendant on probation for three years. As a condition of probation, defendant was ordered to serve 365 days in county jail. At the plea hearing, the prosecutor stated on the record that defendant could serve part of his 365-day jail sentence in the SAFE program, which was a six-month residential treatment program. The trial court agreed with the prosecutor’s statements. Defendant completed the SAFE program on January 17, 2006. Thereafter, defendant requested a modification of his probation. The trial court granted defendant’s request and deemed his 365-day custody sentence terminated as of January 17, 2006. In June 2006, the trial court revoked defendant’s probation and issued a bench warrant on the grounds that defendant failed to stay in touch with his probation officer. In July 2012, defendant was arrested on a new offense. In October 2012, the trial court found defendant had violated probation, and it sentenced him to three years in prison. When defendant inquired whether he was entitled to custody credit for the time he spent in the SAFE program, the court responded that he was not entitled to such credit. The court awarded defendant only 49 days of actual custody credit for the time he spent in custody before the July 21, 2005 plea hearing plus 9 days of conduct credit, for a total of 58 days of credit. The court indicated it was limiting defendant’s conduct credit to 20 percent because of a prior strike in Oregon.