Filed 8/18/20 P. v. Davis CA2/3

  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,                                                   B303478

       Plaintiff and Respondent,                              Los Angeles County
                                                              Super. Ct. No. MA067384
       v.

LLOYD CLIFTON DAVIS,

       Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
      Rachel Varnell, under appointment by the Court of Appeal,
for Defendant and Appellant.
      No appearance for Plaintiff and Respondent.
           _______________________________________
                           INTRODUCTION

      Lloyd Clifton Davis appeals from the trial court’s order
denying his request “to correct and or clarify [his] Abstract of
Judgment.” Appellate counsel filed a brief raising no issues on
appeal and asking us to review the record independently under
People v. Wende (1979) 25 Cal.3d 436. After notifying defendant
that he had 30 days to submit in writing any issues or arguments
he wanted us to consider, defendant did not submit a response.
Having reviewed the entire record, we have found no arguable
appellate issues. We therefore affirm.

                            BACKGROUND

       In April 2016, defendant pled no contest to inflicting
corporal injury on a spouse within seven years of being convicted
of the same offense (Pen. Code,1 § 273.5, subd. (f)(1)), a felony,
and contempt of court (§ 166, subd. (c)(1)), a misdemeanor.
Defendant also admitted four prior prison term enhancements (§
667.5, subd. (b)) and a prior strike conviction (§§ 667, subd. (b),
1170.12, subd. (a)). The court sentenced defendant to a total of 15
years in state prison, consisting of a five-year term for violation of
section 273.5, subdivision (f)(1), doubled to 10 years under the
Three Strikes Law, plus four one-year terms for the prior prison
term enhancements, plus a one-year term for violation of section
166, subdivision (c)(1), all of which the court ordered to run
consecutively. The court awarded defendant 286 days of custody
credits—143 days of actual custody credits and 143 days of good
time credits—which are reflected in the sentencing minute order
and abstract of judgment.

1   All undesignated statutory references are to the Penal Code.




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       In July 2019, the warden of Folsom State Prison, where
defendant has been serving his sentence, issued a
“Memorandum” addressing defendant’s appeal “relative to
[defendant’s] eligibility for early parole consideration under
Proposition 57.” Relevant here, the memorandum concludes that
defendant has a total of 162 days of custody credits for purposes
of calculating his nonviolent parole eligible date (NPED),
consisting of the 143 days of actual custody credits awarded by
the court plus 19 days of “Post Sentence Credits” awarded by the
California Department of Corrections and Rehabilitation (CDCR).
The Memorandum states that defendant’s NPED is December 7,
2020.
       In November 2019, defendant filed a letter in the trial
court, claiming “the court has retracted it[s] [plea] agreement
with [defendant] or CDCR has breached, changed or altered
[defendant’s plea] agreement with [the] court” because the CDCR
reduced the amount of custody credits defendant was awarded at
his sentencing hearing from 286 days to 162 days. Defendant
argued the court has the authority to issue a new abstract of
judgment or to order the CDCR to follow defendant’s abstract of
judgment. Defendant “formally request[ed] a clarification of the
abstract of judgment issued [in April 2016] and or a new abstract
of judgment,” and he asked the court to “award [him] his 286
days toward his release date.”
       In December 2019, the court denied defendant’s request,
finding “the actions of the CDC[R] do not alter [defendant’s] plea
agreement” and that “[t]here is neither a legal basis nor any
evidence to support” defendant’s request.
       Defendant appeals from the court’s December 2019 order.




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                          DISCUSSION

       On November 8, 2016, the California electorate passed
Proposition 57, which amended the California Constitution to
provide: “Any person convicted of a nonviolent felony offense and
sentenced to state prison shall be eligible for parole consideration
after completing the full term for his or her primary offense.”
(Cal. Const., art. 1, § 32, subd. (a)(1).) Under Proposition 57, the
“primary offense” is defined as “the longest term of imprisonment
imposed by the court for any offense, excluding the imposition of
an enhancement, consecutive sentence, or alternative sentence.”
(Id., subd. (a)(1)(A).) Proposition 57 directed the CDCR to “adopt
regulations in furtherance of these provisions[.]” (Id., subd. (b).)
       In its regulations implementing Proposition 57, the CDCR
defines a “full term” of a primary offense as “the actual number of
days, months, and years imposed by the sentencing court for the
inmate’s primary offense, not including any sentencing credits.”
(Cal. Code Regs., tit. 15, § 3490, subd. (e).) The regulations also
provide that a qualifying inmate becomes eligible for parole
consideration on his NPED. (Id., subd. (f).) An inmate’s NPED is
the date on which the inmate has served “the full term” of his
primary offense, “less any actual days served prior to sentencing
as ordered by the court under Section 2900.5 … and any actual
days served in custody between sentencing and the date the
inmate is received by the department.” (Id., subd. (f), italics
added.) In other words, only an inmate’s actual custody credits,
and not any “good time” credits, are used to calculate the
inmate’s NPED under the CDCR’s regulations.
       We have examined the entire record and are satisfied
appellate counsel has fully complied with counsel’s
responsibilities and no arguable issues exist in this appeal.




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(Smith v. Robbins (2000) 528 U.S. 259, 278–284; People v. Wende,
supra, 25 Cal.3d at p. 443.)

                        DISPOSITION

     The order is affirmed.



 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                   LAVIN, J.
WE CONCUR:



     EDMON, P. J.



     DHANIDINA, J.




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