People v. Bowermaster CA2/6

Filed 2/10/14 P. v. Bowermaster CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250351 (Super. Ct. No. M465853) Plaintiff and Respondent, (San Luis Obispo County)

v.

CHARLES EUGENE BOWERMASTER,

Defendant and Appellant.

Charles Eugene Bowermaster appeals the judgment entered after he pled no contest to driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). Appellant also admitted allegations that he had suffered three prior convictions for driving under the influence (Veh. Code, § 23152, subd. (b)) and two prior strike

convictions (Pen. Code,1 §§ 667, subds. (d), (e), 1170.12, subds. (b), (c)), and had served four prior prison terms (§ 667.5, subd. (b)). Appellant was initially deemed incompetent to stand trial. On December 23, 2011, he was committed to Atascadero State Hospital (ASH) for treatment pursuant

1 All further statutory references are to the Penal Code.

to section 1370, subdivision (a)(1)(B)(i).2 On June 14, 2012, ASH's medical director issued a certification of appellant's mental competency in accordance with section 1372.

After appellant waived his rights to a preliminary hearing and trial and pled no contest, 3 the trial court sentenced him to five years in state prison and awarded him 1,034 days presentence custody credit under section 4019. Appellant was also ordered to pay a $1,000 restitution fine (§ 1202.4, subd. (b)) and other various statutory fines and fees. We appointed counsel to represent appellant in this appeal. After examining the record, counsel filed an opening brief raising no issues. On December 12, 2013, we advised appellant that he had 30 days to personally submit any contentions he wished us to consider. In a timely response, appellant contends he is entitled to presentence custody credit in accordance with People v. Bryant (2009) 174 Cal.App.4th 175 (Bryant). He also claims the court erred in ordering him to pay a $1,000 restitution fine. Although defense counsel did not object to the fine, appellant claims that counsel was about to do so when the court "cut him off and made [appellant] set [sic] down and shut up." Appellant fails to demonstrate either error of which he complains. The defendant in Bryant, like appellant, was initially declared incompetent to stand trial and was committed for treatment to restore his competency. The Court of Appeal concluded the defendant was entitled to section 4019 credits as of the date state hospital staff prepared and served a report stating that his competency had been restored, rather than the subsequent date the medical director's designee executed and served a section 1372