People v. Lawson CA1/5

Filed 10/26/15 P. v. Lawson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A144370

v. (Mendocino County JAMES EDWARD LAWSON, Super. Ct. Nos. SCTM CRCR 12-70121, SCTM CRCR 13-74265) Defendant and Appellant.

James Edward Lawson admitted violating his felony probation in two separate matters (Super. Ct. Mendocino County, case Nos. SCTM CRCR 12-70121 & SCTM CRCR 13-74265; respectively, 2012 case & 2013 case). He was sentenced to state prison. Lawson’s petition for resentencing on the 2013 case, under Proposition 47, was granted; he was resentenced on both cases, with a state prison sentence imposed on the 2012 case and a concurrent misdemeanor term imposed on 2013 case. Assigned counsel has submitted a Wende brief,1 certifying that counsel has been unable to identify any issues for appellate review. Counsel also submitted a declaration confirming that Lawson was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. In response to this advisement, Lawson has submitted a letter arguing he should be allowed to withdraw his waiver of custody credits that was made in connection with his earlier sentence. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th

1 People v. Wende (1979) 25 Cal.3d 436.

1

106, 109–110.) Our review disclosed an apparent disparity between the aggregate prison term imposed and the terms of Lawson’s plea agreement in the 2012 case. By order of October 13, 2015, we asked appointed appellate counsel and the Attorney General to submit letter briefs on the issue. There is agreement that the sentence imposed was not authorized under the plea bargain. We therefore order modification of the sentence consistent with the terms of Lawson’s original plea agreement. We otherwise affirm. I. BACKGROUND In the 2012 case, Lawson was charged by felony information with two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),2 false imprisonment (§ 236), making a criminal threat (§ 422), and vandalism (§ 594). On June 24, 2013, pursuant to a negotiated plea agreement, Lawson pleaded no contest to a misdemeanor violation of assault with a deadly weapon, and to felony violations of sections 236 and 422.3 Pursuant to the negotiated disposition, it was agreed that Lawson would be placed on probation for three years with no immediate state prison, and that he would serve 365 days in county jail if he was not accepted into a residential drug treatment program. The prosecution agreed to dismiss the remaining charges, with a Harvey waiver,4 as well as new felony charges. As part of the plea agreement, Lawson agreed to waive 180 days of custody credits. (See People v. Johnson (1978) 82 Cal.App.3d 183, 184–185 (Johnson).) At sentencing on July 8, 2013, Lawson was placed on three years’ probation, with imposition of sentence suspended. He was required to serve 365 days in the county jail as a condition of probation and received 354 days total custody and conduct credit (i.e., with no waiver of custody credits as to the county jail sentence). Conditions of probation included a requirement to enroll in a one-year residential treatment program. In the 2013 case, Lawson was charged by complaint with having possessed morphine on August 3, 2013, a felony violation of Health and Safety Code section 11350,