People v. Martin CA3

Filed 3/12/14 P. v. Martin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Trinity) ----

THE PEOPLE, C071879

Plaintiff and Respondent, (Super. Ct. No. 11F0016)

v.

TIMOTHY JAMES MARTIN,

Defendant and Appellant.

In May 2011, defendant Timothy James Martin pled no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b);1 count one), unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a); count two), two counts of knowing receipt of stolen property (§ 496; counts three & four), and misdemeanor possession of an access card

1 Undesignated statutory references are to the Penal Code.

1

with intent to defraud (§ 484e, subd. (c); count five).2 In exchange, two prior prison term allegations (§ 667.5, subd. (b)) were dismissed. The trial court sentenced defendant to a stipulated term of four years four months in prison, consisting of the upper term of three years on count one, plus consecutive terms of eight months each on counts two and three. The court imposed a concurrent sentence on count four, but stayed it pursuant to section 654. On count five, the court sentenced defendant to a consecutive term of 365 days with 144 days of custody credit and 72 days of conduct credit.3 The trial court stayed execution of the prison sentence and placed defendant on probation on the condition that he successfully complete the Teen Challenge program. In January 2012, the probation department filed a petition alleging that defendant violated his probation (VOP) by, inter alia, failing to complete Teen Challenge. At arraignment on the VOP, defendant informed the court that his brother had passed away, and the court ordered defendant to report to the probation department that same day. Defendant failed to report, and the probation department filed another VOP. At a contested hearing, the trial court sustained both petitions. In June 2012, the trial court ordered execution of the prison sentence and awarded defendant 258 days of custody credit and 149 days of conduct credit. Defense counsel requested credit for the time defendant was in Teen Challenge, arguing because defendant was “ordered to” the program by the court, he was entitled to custody credit for the days he spent in the program. The People opposed the request, arguing defendant “didn’t go to [prison]” and “wasn’t in our jail” so he was not in custody. Neither party asked for a hearing on the issue. Without stating its reasons, the