People v. Nunez CA3

Filed 3/16/15 P. v. Nunez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras) ----

THE PEOPLE, C075524

Plaintiff and Respondent, (Super. Ct. Nos. 11F5319, 12F5548, 13F5756) v.

CARLOS BARBARO NUNEZ, JR.,

Defendant and Appellant.

Defendant Carlos Barbaro Nunez, Jr., appeals following his sentence to state prison under a plea agreement. He contends that he was not awarded sufficient presentence custody credits and that the abstract of judgment needs correction. The Attorney General agrees with both contentions. We shall remand the matter for further proceedings.

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FACTS AND PROCEEDINGS

In case No. 11F5319 (originally filed under a different case number), defendant was charged in May 2009 in Amador County with a single count of dissuading a witness from reporting a crime. (Pen. Code, § 136.1, subd. (b)(2); unless otherwise stated, statutory references that follow are to the Penal Code.) After he pleaded guilty in January 2010, the trial court sentenced him to five years’ probation, including 90 days in jail and 90 days in an “alternative sentencing program” not explained in the record. In this matter, defendant, while an inmate in state prison, placed a phone call to Alissa Mathers at the direction of one Caviglia, advising Mathers on Caviglia’s behalf to “know nothing alleged about a white stolen pickup truck.” In January 2011, the probation officer filed a petition to revoke defendant’s probation because defendant had failed to provide proof of completion of 90 days (or attendance for any amount of time) in the alternative sentencing program. The record does not show any factual determination by the Amador County Superior Court on the truth of that allegation. In December 2011 jurisdiction was transferred to Calaveras County, where the case was assigned its present number. In case No. 12F5548, an information filed in Calaveras County in August 2012 charged defendant with receiving stolen property (count 1; § 496d, subd. (a)), possessing a controlled substance (count 2; Health & Saf. Code, § 11377, subd. (a)), being under the influence of a controlled substance (count 3; Health & Saf. Code, § 11550, subd. (a)), possessing drug paraphernalia (count 4; Health & Saf. Code, § 11364.1, subd. (a)), driving while under the influence of alcohol or drugs (count 5; Veh. Code, § 23152, subd. (a)), and driving with a suspended or revoked license (count 6; Veh. Code, § 14601.1, subd. (a)). The information also alleged that defendant had suffered two prior convictions for driving under the influence and with a suspended or revoked license within 10 years of the charged offenses. Defendant pleaded not guilty and denied the