Filed 6/16/15 P. v. Tunstall CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent, C076999
v. (Super. Ct. No. CRF113354)
ROBERT LEE TUNSTALL, JR.,
Defendant and Appellant.
On March 27, 2011, defendant Robert Lee Tunstall, Jr., punched victim Earl
Shanahorn in the mouth without provocation. Shanahorn sustained a serious upside
down “v” shaped laceration to his upper lip and his two upper front teeth were loose as a
result of the attack.
Defendant was charged with various felony offenses, but was found incompetent
to stand trial on November 3, 2011. Defendant, who was incarcerated on a parole
violation, was transported to Atascadero State Hospital on January 26, 2012. He was
found competent to stand trial and returned to Yolo County Jail on July 26, 2012, with
criminal proceedings reinstated.
1
Defendant subsequently pled no contest to assault by means likely to produce
great bodily injury and admitted an enhancement for inflicting great bodily injury. The
trial court sentenced him to serve 7 years in state prison, imposed various fines and fees,
and awarded 300 days of presentence credit (288 actual and 12 conduct). On appeal of
that sentence, we discovered an error in the number of presentence credits based on the
failure to award defendant some of his time in custody after the revocation of his six-
month parole term. We remanded the matter to the trial court to calculate and award
additional credits as needed, and affirmed the judgment in all other respects.
On remand, the trial court accepted defense counsel’s analysis of the credits issue
and awarded 353 days of actual credit for time served in Yolo County Jail and
Atascadero between October 17, 2011, and October 3, 2012, and 27 days of conduct
credit for 171 days in county jail and the 9 days spent in Atascadero after defendant was
found competent to stand trial.
Defendant appeals from the award of credits on remand.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief raising 16 separate contentions. Fifteen of
those contentions address matters not related to the award of presentence credits. “In an
appeal following a limited remand, the scope of the issues before the court is determined
by the remand order. [Citations.]” (People v. Murphy (2001) 88 Cal.App.4th 392, 396-
397.) Our remand was limited to a determination of the proper award of presentence
credits in this case. In all other respects, the judgment was affirmed. As a result, we
shall not consider those claims unrelated to the award of presentence credits.
2
Defendant makes one contention regarding the award of credits, that he was
entitled to credits from April 9, 2011 to October 3, 2011, the day he was admitted to
Atascadero, and he was entitled to conduct credits for that time pursuant to Penal Code
section 4019.1 In the prior appeal, we held defendant was entitled to presentence credits
for the time served once he was committed to Atascadero, implicitly concluding
defendant was not entitled to credits for incarceration on the parole violation.
(See People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 [“where a period of presentence
custody stems from multiple, unrelated incidents of misconduct, such custody may not be
credited against a subsequent formal term of incarceration if the prisoner has not shown
that the conduct which underlies the term to be credited was also a ‘but for’ cause of the
earlier restraint”].) This holding is the law of the case and defendant is precluded from
relitigating the issue on appeal. (People v. Shuey (1975) 13 Cal.3d 835, 841, disapproved
on other grounds in People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5; 6 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 167, pp. 448-450.)
We note there is an error in the abstract of judgment. Defendant’s conduct credits
were calculated under section 2933.1 because his crime was a violent felony due to the
great bodily injury enhancement. (§ 667.5, subd. (c)(8).) The abstract erroneously lists
the award of conduct credits as made pursuant to section 4019 rather than section 2933.1.
We order a correction to the abstract.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting
that the award of presentence conduct credits was made pursuant to Penal Code
1 Undesignated statutory references are to the Penal Code.
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section 2933.1. The trial court is directed to transmit a certified copy of the corrected
abstract of judgment to the Department of Corrections and Rehabilitation. The order
awarding presentence credits is otherwise affirmed.
HOCH , J.
We concur:
ROBIE , Acting P. J.
MURRAY , J.
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