People v. Cummings CA3

Filed 7/12/16 P. v. Cummings CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ---- THE PEOPLE,

Plaintiff and Respondent, C079707

v. (Super. Ct. Nos. CRF113631, CRF151116) NICHOLAS MARTIN CUMMINGS,

Defendant and Appellant.

Defendant Nicholas Martin Cummings challenges the allocation of presentence credit in two criminal cases. He argues the presentence credit days exceeding his eight- month sentence in case No. CRF113631 should have been allocated to his five-year sentence in case No. CRF151116. Disagreeing, we will affirm the judgment. BACKGROUND We do not recount the details of the underlying crimes as they are not relevant to the issue on appeal. In case No. CRF113631, a jury found defendant guilty of first degree burglary (Pen. Code, § 459),1 felony vandalism (§ 594, subds. (a) & (b)(1)), and possession of burglary tools (§ 466). In a bifurcated proceeding, the trial court found true the allegations that defendant had served four prior prison terms. (§ 667.5, subd. (b).)

1 Undesignated statutory references are to the Penal Code.

1

In February 2012, the trial court sentenced defendant to 10 years in prison but suspended execution of the sentence and placed defendant on probation for four years. In September 2014, while defendant’s appeal was pending, the probation department filed a declaration alleging that he had violated various conditions of his probation. The trial court revoked defendant’s probation but continued the sentencing hearing several times due to the pending appeal. In February 2015, defendant was charged by felony complaint in case No. CRF151116 with unauthorized use of personal identifying information (§ 530.5, subd. (a)) and fraudulent use of an access card (§§ 484g, subd. (a), 487, subd. (a)). It was also alleged that defendant was convicted of a serious felony within the meaning of section 667, subdivision (e)(2) and had served three prior prison terms. (§ 667.5, subd. (b).) On the same day as the felony complaint was filed, a declaration was filed in case No. CRF113631 alleging that defendant had violated the conditions of his probation by committing the crimes alleged in case No. CRF151116. In March 2015, defendant pleaded not guilty to both counts and denied the enhancement allegations in case No. CRF151116. In April 2015, this court issued an opinion on defendant’s appeal in case No. CRF113631, holding that the evidence did not support a conviction for first degree burglary. This court reduced the conviction to second degree burglary and remanded the matter for resentencing. The day after our opinion issued, defendant pleaded no contest to unauthorized use of personal identifying information, admitted the prior prison term allegations in case No. CRF151116, and also admitted violating the conditions of his probation in case No. CRF113631. In exchange for his pleas and admissions, the remaining charges and allegations in case No. CRF151116 were dismissed. As part of the plea agreement, the parties agreed that defendant would receive an aggregate sentence of five years eight months in county jail, consisting of the following: two years for unauthorized use of