People v. Silva CA6

Filed 2/11/16 P. v. Silva CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042164 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1116443)

v.

ANTONIO MENDONCA SILVA,

Defendant and Appellant.

Defendant Antonio Mendonca Silva appeals from a resentencing order pursuant to Proposition 47 in which the trial court denied his request to apply excess custody credits for time served against his outstanding fines. Defendant contends the trial court erred in finding that he had time remaining on two other sentences, imposed concurrently with the sentence under review. The People agree that defendant did not have time remaining on those two matters, and thus concede the trial court erred in denying defendant’s request to apply excess custody credits against his fines. We agree the concession is appropriate. We therefore will modify the resentencing order to apply defendant’s credits for time served to defendant’s outstanding fines, satisfying in full the amount due for the fines. We will affirm the trial court’s order as modified. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant pleaded guilty in October 2011, case No. C1116443, to one count of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1)

and one count of misdemeanor methamphetamine use (Health & Saf. Code, § 11550, subd. (a), count 2), with three prior convictions for misdemeanor controlled substance use and two prior prison terms. The trial court suspended imposition of sentence and placed defendant on formal probation for two years. Defendant admitted to violating the terms of his probation, resulting in his September 27, 2013 sentencing in three cases: (1) case No. C1350530 for misdemeanor violation of Health and Safety Code section 11377, subdivision (a); (2) case No. C1229127 for a probation violation resulting from that misdemeanor; and (3) case No. C1116443 for a probation violation in the case from 2011. As to case No. C1350530, the trial court accepted defendant’s plea of no contest and sentenced him to 466 days in county jail. The trial court deemed that sentence served and ordered defendant “released from custody forthwith.” As to case No. C1229127, the trial court reinstated and terminated probation, ordering “[n]o additional punishment” based on the sentence to be imposed in case No. C1116443. The court again ordered that defendant be “released from custody forthwith.” As to those two cases, the trial court noted they were “done . . . never to rise again.” As to case No. C1116443—the subject of this appeal—the trial court denied probation and ordered defendant to a five year prison sentence on count 1, and to a six month concurrent sentence on count 2, which the court deemed served. The trial court found that defendant had a total of 744 custody credits. On January 23, 2015, defendant filed a petition to have his felony conviction in case No. C1116443 resentenced as a misdemeanor pursuant to Penal Code section 1170.18 (Proposition 47). The trial court granted the petition, and recalled and modified the sentence on count 1 to one year in county jail, with a total of 744 credits for time served. The trial court deemed the sentence served and ordered $589.75 in fines. The trial court denied defendant’s counsel’s request to apply the excess credits to the fines, explaining: “I won’t . . . because the excess credit for time served are also 2