Filed 1/13/20 P. v. Bohannan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

KELLY BOHANNAN,

Defendant and Appellant.

H045781

H046903

(Monterey County

Super. Ct. No. 17CR003430)

In July 2016, defendant Kelly Bohannan was found in possession of a usable amount of a controlled substance while he was confined in state prison. In September 2017, he was charged by complaint with possession of a controlled substance in prison (Pen. Code, § 4573.6, subd. (a)).

In November 2017, defendant sought dismissal of the case under Penal Code section 1381. He asserted that he had filed a request under that section with the prosecutor’s office in February 2017, before the filing of the complaint, but had been rebuffed. The court denied the motion.

In April 2018, an amended complaint was filed adding a strike (Pen. Code, § 1170.12) allegation and three prison prior (Pen. Code, § 667.5, subd. (b)) allegations.

In May 2018, defendant pleaded no contest to the original complaint’s possession count in exchange for a stipulated sentence of three years in prison. The court imposed the stipulated three-year prison term, granted defendant no custody credit, and ordered that his prison term be served consecutive to the term that he was currently serving in state prison. The court imposed a $300 restitution fund fine, an equal parole revocation restitution fine, a $40 court operations assessment, and a $30 court facilities assessment. Defendant timely filed a notice of appeal from the judgment and sought and obtained a certificate of probable cause.

In January 2019, defendant filed a motion in the trial court seeking actual custody credit and conduct credit based on his claim that he would have been paroled in November 2017 had he not been incarcerated for this case. The prosecution produced evidence that the Department of Corrections and Rehabilitation had discovered an error in the calculation of defendant’s parole date when it did an audit in November 2017, and his parole date had been corrected to July 2019, after his May 2018 sentencing in this case.

In February 2019, defendant filed a motion in the trial court asking the court to hold a hearing on his ability to pay the restitution fund fine, the parole revocation restitution fine, the court operations assessment, and the court facilities assessment.

In May 2019, the court denied defendant’s motion seeking credit, but it held a hearing on defendant’s ability to pay the fines and assessments. It found that the prosecution had not shown that defendant had the ability to pay the fines and assessments, and it stayed the fines and “waive[d]” the assessments. Defendant timely filed a notice of appeal from the court’s May 2019 order.

Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf but has failed to avail himself of the opportunity. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.

The judgment and the postjudgment order are affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Bamattre-Manoukian, J.

People v. Bohannan

H045781 and H046903