P. v. Smith CA2/6

Filed 3/27/13 P. v. Smith CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B243068 (Super. Ct. No. 2009039372) Plaintiff and Respondent, (Ventura County)

v.

DAVID ALLEN SMITH,

Defendant and Appellant.

David Allen Smith appeals a judgment revoking his probation and sentencing him to a two-year prison term following his earlier conviction for possession or control of child pornography. (Pen. Code, § 311.11, subd. (a).)1 We conclude that the trial court's award of 365 days of presentence custody credit is proper, and affirm. FACTS AND PROCEDURAL HISTORY On November 6, 2009, the Ventura County prosecutor charged Smith with possession or control of child pornography. (§ 311.11, subd. (a).) On November 20, 2009, pursuant to a plea agreement, Smith waived his right to a preliminary examination and pleaded guilty to the charge. The trial court then granted Smith five years of formal probation with terms and conditions including 365 days of confinement in county jail, not using or possessing nonprescribed marijuana, and not associating with children under the age of 18 unless in the presence of an adult approved by the probation officer.

1 All further statutory references are to the Penal Code.

The court imposed various fines and awarded Smith 72 days of presentence custody credit. First Probation Violation - June 2011 On June 2, 2011, Smith's probation officer charged that Smith violated the terms and conditions of his probation by smoking marijuana. The probation officer reported that the therapist providing Smith's sex-offender treatment opined that Smith's marijuana use was "a definite risk factor" for his reoffending. The probation officer concluded that Smith presented "a tremendous threat to the community" by his continued use of marijuana and access to computers. At the probation violation hearing, Smith was present in court and admitted the charged allegations through his attorney. As the probation officer recommended, the trial court revoked and then reinstated Smith's probation with the condition that he serve 90 days of confinement in county jail and agree to waive credits in excess of 365 days. The trial judge stated: "He needs to waive credits in excess of 365." Smith's attorney responded: "He waives credits in excess of 365 also." The trial judge also remarked: "If I see him back again, I'll send him to prison." Smith then signed and dated a minute order stating: "Defendant waives credits in excess of 365 days." Second Probation Violation - June 2012 Nearly one year later, Smith's probation officer charged that Smith again violated the terms and conditions of his probation by using marijuana and associating with his former girlfriend's young children. At the July 31, 2012, contested probation violation hearing, the trial court received testimony from Smith's probation officer and Smith's former girlfriend. The court then found Smith violated the terms of his probation. It revoked Smith's probation and sentenced him to two years in prison. The court imposed various fines and awarded Smith only 365 days of presentence custody credit based upon his waiver made at the