Filed 10/17/13 P. v. Dickey CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063790

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD231183,
                                                                    SCD212263, SCD227452,
IRA M. DICKEY,                                                      SCE286737)

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.



         Theresa O. Stevenson, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.
                                   INTRODUCTION

      On the same day in March 2011, the trial court sentenced Ira M. Dickey in four

separate cases and awarded him differing amounts of presentence custody credit in each

case. In February 2013 Dickey filed a petition for writ of error coram vobis seeking an

order directing the Department of Corrections and Rehabilitation to recalculate his

release date based on the case in which he had earned the greatest number of presentence

custody credits. The trial court denied the petition on both procedural and substantive

grounds.

      Dickey appeals. His appointed appellate counsel filed a brief requesting we

independently review the record for error. (See People v. Wende (1979) 25 Cal.3d 436,

441-442.) Having done so and having identified no reasonably arguable appellate issues,

we affirm the judgment.

                                    BACKGROUND

Case No. SCD212263

      On September 23, 2008, Dickey pleaded guilty to owning and operating a chop

shop (Veh. Code, § 10801) and being a felon in possession of a firearm (formerly Pen.

Code, § 12021, subd. (a)(1), now Pen. Code, § 29800, subd. (a)(1)). The trial court

sentenced him to four years and eight months in prison, but stayed execution of the

sentence and placed him on three years of formal probation. The court also awarded him

348 days of presentence custody credit, consisting of 232 days of actual custody credit

and 116 days of conduct credit under Penal Code section 4019.



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       On March 16, 2011, the court revoked Dickey's probation and imposed the

previously stayed sentence of four years and eight months in prison. The court awarded

him 661 days of presentence custody credit, consisting of 331 days of actual custody

credit and 330 days of conduct credit under Penal Code section 4019.

Case No. SCE286737

       On July 14, 2009, Dickey pleaded guilty to fraudulently using a contractor's

license number (Bus. & Prof. Code, § 7027.3). The court suspended imposition of

sentence and placed him on five years of formal probation.

       On March 16, 2011, the court revoked Dickey's probation and sentenced him to

three years in prison to run concurrently with the sentences in case numbers SCD231183,

SCD227452, and SCD212263. The court awarded him 189 days of presentence custody

credit, consisting of 95 days of actual custody credit and 94 days of conduct credit under

Penal Code section 4019.

Case No. SCD227452

       On January 28, 2011, Dickey pleaded guilty to unlawfully taking or driving a

vehicle (Veh. Code, § 10851, subd. (a)). On March 16, 2011, the court sentenced him to

eight months in prison to run consecutive to his sentence in case number SCD231183.

The court did not award him any presentence custody credit.

Case No. SCD231183

       On January 28, 2011, Dickey pleaded guilty to possessing a controlled substance

for sale (Health & Saf. Code, § 11378) and admitted having a prior conviction for the

same offense (Health & Saf. Code, § 11370.2). On March 16, 2011, the court sentenced

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him to five years in prison. The court awarded him 196 days of custody credit, consisting

of 98 days of actual custody credit and 98 days of conduct credit under Penal Code

section 2933.1.

Writ of Error Coram Vobis

       In February 2013, Dickey filed a petition for writ of error coram vobis requesting

the trial court direct the Department of Corrections and Rehabilitation to recalculate his

release date based on the 661 days of presentence credit awarded in case number

SCD212263, rather than the 196 days of presentence credit awarded in case number

SCD231183.

       The trial court denied the petition on procedural grounds because a petition for

writ of error coram vobis is not appropriately addressed to the court that rendered

judgment. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 941, fn. 5 [a petition for writ of

error coram nobis is addressed to the trial court and a petition for writ of error coram

vobis is addressed to the appellate court].) The trial court also denied the petition on

substantive grounds, explaining:

       "[W]hen sentences in two or more cases are ordered to run concurrently, the

'controlling case' is the case with the longest period of imprisonment after deducting the

total credits from the sentence imposed. . . . Case No. SCD 231183 is the controlling

case, with the sentence in Case No. SCD 227452 running consecutively[.] . . . Case Nos.

SCD 212263 and SCE 286737 are non-controlling cases. [¶] . . . Pre-sentence credit

awarded in a non-controlling case has no effect on [Dickey's] ultimate release date. The

law is clear that [Dickey] is not entitled to have pre-sentence credit in the non-controlling

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case applied to the controlling case, and that he may not receive cumulative credit for the

controlling and non-controlling cases. [Citations.]

       "Even though sentences in two or more cases are served concurrently, each

concurrent sentence is separately calculated. Here, the sentence in the controlling case,

Case No. SCD 231183, is used to determine the release date. Contrary to [Dickey's]

argument, credit against the sentence in a non-controlling case, such as Case No. [SCD]

212263, has no effect on how long [Dickey] must remain incarcerated. This is because

when [Dickey] has completed the sentence in the non-controlling case, minus any credit

against it, he would still need to serve the time (if any) left in the controlling case." (Bold

face omitted.)

                                        DISCUSSION

       Appointed appellate counsel filed a brief summarizing the facts and proceedings

below. Counsel presented no argument for reversal and instead requested we review the

record for error as mandated by People v. Wende, supra, 25 Cal.3d at pp. 441-442.

Counsel further identified two possible, but not reasonably arguable issues. (See Anders

v. California (1967) 386 U.S. 738, 744.) These issues were: (1) whether the trial court

erred in denying the petition for writ of error coram vobis on procedural grounds; and (2)

whether the trial court erred in denying Dickey's request to have his release date

recalculated based on the additional presentence custody credits awarded in SCD212263.

       We granted Dickey permission to file a supplemental brief on his own behalf. He

did not do so.



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      As requested by counsel, we reviewed the record for error and did not find any

reasonably arguable appellate issues. Dickey has been competently represented by

counsel on this appeal.

                                    DISPOSITION

      The order is affirmed.



                                                                   MCCONNELL, P. J.

WE CONCUR:


O'ROURKE, J.


AARON, J.




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