P. v. Davison

Filed 11/29/05 P. v. Davison CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. BARON LAMAR DAVISON, Defendant and Appellant.

A109730 (Sonoma County Super. Ct. Nos. SCR 32732, SCR 33429)

On April 29, 2003, Baron Lamar Davison pleaded guilty to carrying a concealed dirk or dagger, with the understanding he would be placed on probation for a maximum term of 90 days. Davison did not appear for sentencing on June 25, and a bench warrant was issued for his arrest. Four days later, he was arrested for committing an assault.

On January 15, 2004, Davison pleaded guilty to assault with force likely to produce great bodily injury, with the understanding that he would be placed on probation. At sentencing, the court suspended the imposition of judgment, and placed Davison on formal probation for 36 months subject to various terms and conditions. Additionally, as to the earlier offense of concealing a dirk or dagger, for which Davison had never been sentenced, the court imposed the originally promised probationary sentence.

On May 7, 2004, Davison’s probation was summarily revoked. Three months later, after waiving his right to a hearing, Davison, represented by counsel, admitted that he had violated probation by failing to abstain from using drugs and to appear as directed for a scheduled self-surrender at the probation department. Before sentencing, the probation department filed a report indicating that Davison had been strongly advised that he needed to participate in a structured and challenging residential drug treatment program because it appeared that he could not control his addictions on his own in the community. It was recommended that Davison be ordered to complete a residential drug treatment program and that he waive all custody credits while in residential treatment.

At the September 9, 2004, sentencing hearing, the court reinstated Davison to probation conditioned upon his successful completion of a residential drug treatment program. Although not a condition of probation, Davison expressly acknowledged that he agreed to waive all custody credits while in residential treatment.

On February 18, 2005, after waiving a hearing, Davison, represented by counsel, admitted that he had violated his probation by failing to complete the residential treatment program and failing to report to the probation department after he left the program.

At the March 18, 2005, sentencing hearing, Davison’s counsel argued that the court should again reinstate Davison to probation, which was opposed by the district attorney. The court revoked Davison’s probation after concluding that there were no unusual circumstances that would support again reinstating Davison to probation. The court imposed an aggravated term of four years on the assault offense based solely on recidivism factors, and a consecutive middle term of eight months on the offense of concealing a dirk or dagger. Without objection by Davison, the court awarded him credit for time he had previously served in custody, except for the 37 days that he had spent in the residential treatment facility.

Davison’s appellate counsel has filed a brief raising no issues and asks this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We have conducted that review, and agree with Davison’s appellate counsel that there are no issues warranting further briefing. In his notice of appeal, Davison challenges the award of custody credits, contending that he “waived time” of which he “was not aware.” The record does not support Davison’s contention that he was not aware of what custody credits he had waived. At the September 9, 2004, hearing, Davison expressly waived custody credits for any time he spent while in a residential treatment program that he had been ordered to complete. After the court later refused to reinstate probation and imposed a state prison term, Davison was properly granted credit for time he had previously served in custody, except for the days that he had spent while in residential treatment.

DISPOSITION

The judgment is affirmed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Pollak, J.

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