People v. Fischer CA6

Filed 5/2/16 P. v. Fischer CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042791 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F24689)

v.

ERIN HOWARD FISCHER,

Defendant and Appellant.

I. INTRODUCTION Defendant Erin Howard Fischer pleaded no contest to carrying a loaded firearm in a vehicle by a felon (Pen. Code, § 25850, subd. (c)(1)).1 The trial court sentenced him to three years in prison and granted 1,142 days of custody credits, consisting of 809 actual days plus 333 days conduct credit. The original minute order for the sentencing proceeding and the original abstract of judgment indicated that defendant was granted conduct credit pursuant to section 2933.1. On appeal, defendant contends that the minute order and the abstract of judgment must be corrected to delete the references to section 2933.1 because he was granted conduct credit pursuant to section 4019. While defendant’s appeal was pending, the trial

1 All further statutory references are to the Penal Code unless otherwise indicated.

court amended the minute order and the abstract of judgment to indicate that conduct credit was granted pursuant to section 2933. We agree with defendant that section 4019 was the proper basis for the trial court’s grant of conduct credit. We will order the minute order and the abstract of judgment corrected accordingly. II. FACTUAL AND PROCEDURAL BACKGROUND In 2013, defendant was stopped by a police officer and found to have weapons in his vehicle and home. While criminal charges were pending against him, defendant was found incompetent and spent nearly a year at Atascadero State Hospital before being found competent. In 2014, defendant pleaded no contest to carrying a loaded firearm in a vehicle by a felon (§ 25850, subd. (c)(1)). Before he could be sentenced, defendant was again found incompetent and committed to Atascadero State Hospital. Defendant filed a notice of appeal. This court dismissed the appeal in an unpublished decision. (People v. Fischer (May Nov. 19, 2015, H041884) [nonpub. opn.].)2 In 2015, the hospital reported that defendant’s competence had been restored. The court found defendant competent and reinstated criminal proceedings. A sentencing hearing was held on July 20, 2015. The court sentenced defendant to the upper term of three years in prison and dismissed all remaining counts. The court characterized defendant’s sentence as a “paper commitment” in view of his custody credits. The court granted defendant 1,142 days of custody credits, consisting of 809 actual days plus 333 days conduct credit. Regarding defendant’s 809 actual days in custody, the court explained that defendant was at the hospital for 476 days and that he would not receive “good time credits” for those days. For the remaining 333 actual days,