People v. Dubose CA3

Filed 7/18/14 P. v. Dubose CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C075215

Plaintiff and Respondent, (Super. Ct. Nos. CM030776, CM031201, SCR71159) v.

BLANNON MAYNOR DUBOSE,

Defendant and Appellant.

When defendant Blannon Dubose was found in violation of probation for the third time in 2013, the trial court revoked his probation and executed his previously stayed prison sentence. Defendant first contends he should serve his sentence in county jail instead of prison because he was “sentenced” when, in 2013, the trial court executed the previously suspended sentence and thus he falls under the provisions of Penal Code1

1 Further section references are to the Penal Code.

1

section 1170, subdivision (h). Second, he contends he should receive one-for-one custody credits for the time he served after the most recent amendment of section 4019 became operative. We disagree and affirm. FACTUAL AND PROCEDURAL HISTORY In 2009, defendant was convicted of second degree commercial burglary, receiving stolen property, and battery. Imposition of sentence was suspended and the trial court placed him on formal probation. Defendant first violated probation in 2010. At that time, the trial court sentenced defendant to a total of three years and eight months: two years for receiving stolen property, eight months for commercial burglary, and one year for a prior prison term enhancement pursuant to section 667.5, with a one-year concurrent term on the battery. The sentence was stayed and probation was reinstated. In 2012, defendant violated probation again. Probation was reinstated again, with one condition being that he waive all actual days served and custody credits earned up to that point. Defendant violated his probation for a third time in 2013. At that time, the trial court denied defendant’s application for continuance on probation. It lifted the stay and executed the previously imposed sentence of three years and eight months, to be served in prison. At the time, defendant had served 44 days and earned 22 days of custody credits, for a total of 66 credit days. Defendant appealed. DISCUSSION I Defendant Must Serve His Time In Prison Defendant contends his prison sentence must be converted to a county jail sentence pursuant to section 1170, subdivision (h)(6). According to him, he was “sentenced” when the trial court, in 2013, declined to reinstate his probation and executed the previously suspended sentence. Therefore, he contends he falls under the provisions of section 1170 subdivision (h). Defendant is wrong.