People v. Valentine CA3

Filed 5/13/15 P. v. Valentine CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C076234

Plaintiff and Respondent, (Super. Ct. No. MF036283A)

v.

TIMOTHY SHANE VALENTINE,

Defendant and Appellant.

Following a jury trial, defendant Timothy Shane Valentine was convicted of assault with a deadly weapon and by means of force likely to produce great bodily injury and sentenced to two years in state prison. On appeal, defendant contends the trial court miscalculated his presentence custody credits and failed to state the statutory basis for all of the fines and penalty assessments imposed at sentencing. Defendant’s challenge to the trial court’s award of presentence custody credits raises factual issues properly resolved in the trial court. Accordingly, we will remand to the trial court to determine defendant’s actual time in custody and adjust his presentence

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custody credits accordingly (if necessary). We also direct the trial court to state the statutory basis for the all fees, fines, and penalties imposed upon defendant. The judgment is otherwise affirmed. DISCUSSION On July 24, 2013, an information was filed charging defendant with one count of assault with a deadly weapon and by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)1 The information further alleged that defendant personally caused great bodily injury to the victim. (§ 12022.7, subd. (a).) On December 6, 2013, a jury returned a guilty verdict on the assault charge, but found the enhancement allegation not true. Defendant was originally scheduled to appear for sentencing on January 27, 2014. In anticipation of the sentencing hearing, the probation department prepared a report indicating that defendant had been in custody for 102 days, from April 13, 2013, through January 27, 2014. The sentencing hearing was continued to March 13, 2014, resulting in an additional 44 days in custody. At the sentencing hearing, the trial court awarded defendant 146 days of custody credit and 146 days of conduct credit, for a total of 292 days of credit. The trial court also imposed a $300 restitution fine, a $300 parole revocation fine (which was stayed pending completion of parole), a $40 court security fee, a $30 conviction fee, a $30 surcharge, and victim restitution in the amount of $61,397.95. The trial court did not recite the statutory basis for any of the foregoing fines, fees, or assessments. However, the abstract of judgment states the statutory basis for the restitution and parole revocation fines (Pen. Code, §§ 1202.4, subd. (b) and 1202.45, respectively), the “court security fee” or court operations assessment (Pen. Code,