People v. Kephart CA3

Filed 7/6/23 P. v. Kephart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C096842

Plaintiff and Respondent, (Super. Ct. Nos. P20CRF0094, 22CR1288) v.

ROBERT LEE KEPHART,

Defendant and Appellant.

Defendant Robert Lee Kephart’s sole argument on appeal is that the trial court’s failure to apply excess custody credits accrued on a subordinate term to the then principal term resulted in “dead time” in contravention of In re Marquez (2003) 30 Cal.4th 14, 20 (Marquez) and its progeny. We disagree and will affirm.

1

I FACTUAL AND PROCEDURAL BACKGROUND On February 25, 2020, defendant pled no contest to possessing a controlled substance for sale (Health & Saf. Code, § 11351) in El Dorado County Superior Court case No. P20CRF0094 (the 2020 drug case) and in exchange received a split sentence of one year six months in jail with two years six months on mandatory community supervision (Pen. Code, § 1170, subd. (h))1 under specified terms and conditions. Nearly 28 months later, defendant was charged with willfully inflicting corporal injury on a spouse resulting in a traumatic condition (§ 273.5, subd. (a)) in El Dorado County Superior Court case No. 22CR1288 (the 2022 domestic violence case). The prosecution also sought to revoke his mandatory community supervision in the 2020 drug case because of this new law violation. On July 21, 2022, defendant pled no contest to the sole count in the 2022 domestic violence case and also admitted he had violated his mandatory supervision in the 2020 drug case. In exchange, defendant would receive a low-term sentence of two years in the 2022 domestic violence case and a consecutive one-year term (one-third the midterm) in the 2020 drug case. Prior to sentencing, defendant filed a custody credit brief seeking to apply the excess custody credit from the 2020 drug case to the term associated with the 2022 domestic violence case. The prosecution opposed this request. Thereafter, on August 2, 2022, the trial court sentenced defendant in accordance with his plea agreement. The parties submitted the custody credit issue on the briefs, and the court issued its ruling, finding defendant’s authorities distinguishable and denying his request to apply excess credits from the 2020 drug case to the 2022 domestic violence