P. v. Turner CA1/4

Filed 3/7/13 P. v. Turner CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A134641 v. THOMAS C. TURNER, (Napa County Super. Ct. Nos. CR147884, CR148687) Defendant and Appellant.

Defendant Thomas C. Turner was charged with making criminal threats against two staff members while he was committed at Napa State Hospital as a mentally disordered offender (MDO). He was held in Napa and Solano county jails while these charges were pending, and he eventually pleaded no contest to them. In this appeal, he contends that the trial court was required to conduct an evidentiary hearing on the possibility that he is entitled to presentence custody credits because his status as an MDO may have changed during different periods while he was held in the county jails. We disagree and affirm the judgment of the trial court. I. BACKGROUND Turner threatened two staff members at Napa State Hospital while committed there as an MDO by the Solano Superior Court under Penal Code section 2962.1 The threats occurred during two separate incidents in 2009, one in July and the other in August.

1 All further statutory references are to the Penal Code.

1

The Napa County District Attorney charged Turner with making a criminal threat (§ 422) in two separate cases. The district attorney further alleged Turner had suffered three prior strike convictions (§ 667, subds. (b)-(i)). The cases were resolved in October 2011 when Turner pleaded no contest in both of them to making a criminal threat. He admitted one prior strike. The probation officer’s sentencing report showed that Turner had been held in Solano and Napa county jails while the charges were pending. In a sentencing memorandum, defense counsel pointed out that while Turner was in these facilities he was the subject of two MDO commitment-extension proceedings in Solano County. Copies of Solano County Superior Court orders, attached to the sentencing memorandum, appear to confirm that Turner’s MDO commitment was twice extended. They show that Turner was in the middle of a one-year commitment set to expire on February 16, 2010, when he threatened the hospital staff. His commitment was extended to February 16, 2011, after a trial held in September 2010. It was again extended, this time to February 16, 2012, after another trial held in October 2011. Defense counsel argued below that Turner was entitled to custody credits during the periods between the expirations and subsequent extensions of his MDO commitment because Turner’s custody during those periods resulted solely from the threat charges. The trial court disagreed. The court noted that Solano County records showed Turner had waived time “during the time period when one could argue that there was an expiration.” The court then sentenced Turner to six years in state prison in both cases, with the terms to run concurrently. II. DISCUSSION Turner renews his bid for presentence credits on appeal. He contends the trial court failed to consider the consequences of the delayed extensions of his MDO commitment. He acknowledges that persons held under a mental health civil commitment are generally not entitled to pretrial custody credits against a sentence imposed in a separate criminal matter. (People v. Mendez (2007) 151 Cal.App.4th 861, 865 (Mendez); People v. Callahan (2006) 144 Cal.App.4th 678, 685-686.) He relies,