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People v. Thomas10/30/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In April 1998, defendant Joel David Thomas pleaded no contest to driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23153, subd. (b); count two), and driving while his privilege was suspended or revoked (Veh. Code, § 14601.5, subd. (a); count three). He admitted allegations that his blood alcohol content exceeded .20 percent (former Veh. Code, § 23206.1; Stats. 1985, ch. 1256), and that he had suffered a prior conviction of driving under the influence (Veh. Code, § 23152).
In October 1998, imposition of sentence was suspended and defendant was placed on probation on the conditions, among others, that he pays a $200 restitution fine (Pen. Code, § 1202.4, subd. (b); further statutory references are to the Penal Code) and serves 30 days of incarceration with authorization "to enter into any special release programs that the jail might offer" and that probation might authorize. He ultimately spent 28 days out of jail custody on an electronic surveillance program and received credit for three days spent in Butte County Jail.
In April 2000, a petition was filed alleging that defendant violated probation in Fresno County by driving while under the influence and while his privilege was suspended or revoked. In June 2000, defendant admitted these allegations.On February 9, 2001, the Fresno County Superior Court sentenced defendant to state prison for 16 months.
On June 4, 2001, the trial court sentenced defendant to state prison for two years eight months, consisting of two years on count one plus eight months consecutive for the Fresno offense. He was awarded 31 days of custody credit and 16 days of conduct credit, based upon the disciplinary term, and was ordered to pay a $400 restitution fine (§ 1202.4) and a $400 restitution fine suspended unless parole is revoked (§ 1202.45). A concurrent jail term of six months was imposed for count three.
Defendant contends, and the People concede, the judgment must be modified to impose a $200 restitution fine and a $200 restitution fine suspended unless parole is revoked. Defendant claims he was entitled to custody and conduct credits from February 9, 2001, the date of the Fresno sentencing, until June 4, 2001, the date of the Butte sentencing. The People claim defendant is not entitled to conduct credits for the period of electronic surveillance. We shall modify the judgment.
FACTS
The present offense, case No. CM010372, resulted from defendant driving with a blood alcohol level of .35 percent on January 10, 1998, at approximately 11:00 p.m. While driving on Highway 32 at about 50 miles per hour, defendant swerved into the oncoming lane a number of times, colliding head-on with a car driven by Mohammed Ilian. Mohammed's wife and his year- and one-half old son were passengers in the car. The victims suffered only minor injuries.
The Fresno County offense, case No. 654561-0, occurred on April 1, 2000. At about 9:50 p.m., defendant was observed weaving as he drove. When stopped by officers, he had a blood alcohol level of .23 percent.
DISCUSSION
I.
Defendant contends, and the People concede, the judgment must be modified to impose a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 restitution fine suspended unless parole is revoked (§ 1202.45). We accept the People's concession.
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