P. v. Collins CA6

Filed 6/27/13 P. v. Collins CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H037336 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS081318A, SS092538A) v.

ALVIN LEON LEE COLLINS,

Defendant and Appellant.

I. INTRODUCTION In case No. SS081318A, defendant Alvin Leon Lee Collins pleaded no contest to possession of a deadly weapon, a cane sword (Pen. Code, § 12020, subd. (a)(1))1 and admitted the allegation that he had a prior violent or serious felony conviction that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)). In case No. SS092538A, defendant pleaded no contest to possession of a controlled substance, cocaine base, (Health & Saf. Code, § 11350, subd. (a)) and admitted the allegation that he had a prior violent or serious felony conviction that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)). In both cases, the trial court dismissed the admitted strike allegation, suspended the imposition of sentence, and placed defendant on formal probation for three years. Probation was revoked twice and in August 2011 defendant was sentenced to three years

1 Further unspecified statutory references are to the Penal Code.

in state prison in case No. SS081318A and a consecutive term of eight months in case No. SS092538A. The court granted defendant 252 days of custody credits in case No. SS081318A, consisting of 168 actual days plus 84 days conduct credit under section 4019. In case No. SS092538A, the court granted defendant 182 days of custody credits, consisting of 122 actual days plus 60 days conduct credit under section 4019. On appeal, defendant contends he is entitled to additional conduct credit under the October 2011 version of section 4019. For reasons that we will explain, we find no merit in defendant’s contentions and we will affirm the judgment. II. FACTUAL AND PROCEDURAL BACKGROUND According to the probation report, in April 2008 defendant was arrested for fighting in public and battery. After the arrest, police officers discovered that a two-foot long blade was attached to the handle of defendant’s cane. In November 2009, police officers observed defendant as he conducted a hand-to-hand transaction in an area known for drug activity. One officer saw defendant place an object in the gutter that was later determined to be a baggie containing rock cocaine. Defendant was subsequently charged in 2008 by amended information in case No. SS081318A with possession of a deadly weapon, a cane sword (§ 12020, subd. (a)(1); count 1) and carrying a knife (§ 12020, subd. (a)(4); count 2). The amended information further alleged that defendant had three prior violent or serious felony convictions that qualified as a strike within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(1)) and that he had served four prior prison terms (§ 667.5, subd. (b)). In 2009, defendant was charged by information in case No. SS092538A with possession of a controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a); count 1)). The information further alleged that defendant was out of custody on his own recognizance at the time of the offense (former § 12022.1) and he had