People v. Wingo CA6

Filed 7/15/16 P. v. Wingo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042624, H043108 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F24121)

v.

THOMAS JACOB WINGO,

Defendant and Appellant.

Defendant Thomas Jacob Wingo was on probation in case No. F23156 when he pleaded guilty to two counts of second degree commercial burglary (Pen. Code, § 459)1 in case No. F24121. The trial court placed him on probation in case No. F24121. Defendant served 112 days in custody, attributable to both cases, for various probation violations between August 16, 2013, and March 23, 2015. On July 21, 2015, the court found defendant to be in violation of his probation in both cases, terminated probation, and imposed sentences in both cases. On appeal, he argues that the court erred when it awarded the 112 days of custody credit only to case No. F23156 and not to case No. F24121. The People concede the issue, and we find the concession appropriate. We modify the judgment and affirm.

1 Unspecified statutory references are to the Penal Code.

BACKGROUND2 On August 12, 2012, defendant was placed on three years’ probation and was ordered to serve 120 days in county jail in case No. F23156 for committing a crime against an elder or a dependent adult (§ 368, subd. (c)), a misdemeanor. On February 13, 2013, while still on probation in case No. F23156, defendant pleaded guilty in case No. F24121 to two counts of second degree commercial burglary (§ 459), was placed on three years’ probation, and was ordered to serve 270 days in county jail. While defendant was on probation in both cases, he was found to be in violation of his probation in both cases several times between August 16, 2013 and March 23, 2015. He spent a total of 112 days in custody for these probation violations. On April 3, 2015, defendant violated probation and, pending the probation revocation hearing, was in custody between April 17, 2015, and July 21, 2015, for a total of 96 days. On July 21, 2015, the court found defendant to be in violation of his probation in both cases, terminated probation, and sentenced defendant in both cases. In case No. F23156, defendant was sentenced to 198 days in jail. The trial court awarded defendant with 198 days of actual custody credit and 198 days of conduct credit, for a total of 396 days. This included the 112 days that defendant had served for violating probation between August 16, 2013, and March 23, 2015. In case No. F24121, the court sentenced defendant to a total term of two years eight months in prison. The trial court awarded defendant 243 days of actual custody credit and 243 days of conduct credit, for a total of 486 days. The 243 days of actual custody credit was calculated by adding the 135 days of custody he had served as part of