California Court of Appeal Oct 17, 2013 No. D063790Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.
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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
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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
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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.
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for writ of error coram vobis, finding no reasonably arguable appellate issues regarding the trial court's calculation of presentence custody credits or the denial of the petition.
Issues
Whether the trial court erred in denying the petition for writ of error coram vobis on procedural grounds.
Whether the trial court erred in denying the request to recalculate the release date based on credits from a non-controlling case.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Having done so and having identified no reasonably arguable appellate issues, we affirm the judgment.”