P. v. Sogoian






Filed 10/3/11 P. v. Sogoian 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NOT TO BE PUBLISHED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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Tehama)
----

THE PEOPLE, Plaintiff and Respondent, v. SEAN CORY SOGOIAN, Defendant and Appellant.

C066910 (Super. Ct. No. NCR79597)

Defendant Sean Cory Sogoian pleaded guilty to vehicle theft, evading an officer, and second degree commercial burglary. He was sentenced to 13 years 4 months in prison.
Defendant contends the matter must be remanded for determination of presentence credit, because the trial court incorrectly indicated that “the jail determines credits.” The People agree that the matter should be remanded.
We will remand the matter and direct the trial court to conduct a hearing and determine defendant’s presentence credit.
BACKGROUND
Our recitation of the background is appropriately limited to the circumstances relevant to defendant’s contention on appeal. Defendant pleaded guilty to two counts of vehicle theft, one count of evading an officer, and 14 counts of second degree commercial burglary. He also admitted he had served a prior prison term. In exchange for his plea, an allegation of a prior strike and an additional case were dismissed. The trial court sentenced defendant to an aggregate term of 13 years 4 months in prison, imposed a restitution fine of $6,800, and ordered victim restitution in the amount of $1,470.34.
At the sentencing hearing, the trial court addressed presentence credit as follows:
“[THE COURT:] And does either counsel wish to address credits‌ The credit issue that I am concerned with is the jail stated that they denied credits from October 14th to November 22nd. However, Probation calculated the credits without taking away those credits.
“[Defense Counsel]: Well, Your Honor, I was kind of in a quandary as to why the credits were taken away from the 412 and gave the adjusted total of 200. There is no explanation in the jail –- or from the Probation Department as to it. The letter that I received on November 30th says he had –- The arrest date was May 15th, 2010. In-custody, current date, actual days, 206; conduct credit, 206; total, 412.
“THE COURT: Counsel, I can answer that, I believe.
“Page 13 of the report indicates that from May 15th to August 28th he was in custody for parole violations that were unrelated to this offense. So the credits were calculated as of August 28th.
“My question is whether or not the jail successfully took away his conduct credits from October 14th to November 22nd, as stated in the report.
“Counsel for the People, are you aware of that‌
“[Prosecutor]: I only see in the report that the jail was recommending that. I don’t have any more information as to whether that was taken into account on the November 30th letter from Probation.
“THE COURT: Well, the jail determines credits. If they took away conduct credits, he is not entitled to them. But the information in the report may not be sufficient enough for us to know whether or not those credits were taken away in the jail. They have that ability to administratively take away credits. What is unclear is whether they did that or not.
“[Defense Counsel]: It is unclear to me. And you said that was in the Probation Officer’s report, Your Honor‌
“THE COURT: Yes. On top of Page 15, the first paragraph.
“[Defense Counsel]: That’s what I was looking at, Judge.
“THE COURT: Other than that issue, Counsel, because we will have to trail that to get the answer, other than the conduct credits that may have been taken away while he was been [sic] in the jail, do you wish to be heard on the remaining credits‌
“[Defense Counsel]: I will submit on the remaining credits, Your Honor.
“And just one comment regarding the jail. It appears to me that –- and I guess they are authorized to do it. But it’s just double-dipping on the part of this.
“The June 18th incident, he was locked down for 30 days in segregation and lost his visitation and commissary privileges, punishment because of his conduct. He received a warning concerning an unauthorized communication in September. Again disciplinary segregation.
“On September 23rd to September 30th, punishment for his conduct. Disciplinary segregation, and lost his commissary privileges from October 17th to October 30th. Again, punishment.
“And so he’s already been –- They took care of the problem by putting him in disciplinary segregation each and every time that they found him in violation of jail rules. And now we are turning around at time of sentencing and going to punish again by taking away credits.
“THE COURT: The way the Court looks at it is it’s not for us to decide whether or not any of those punishments were valid or not. He had some administrative remedies in the jail.
“What the Court wants to know is whether or not the conduct credits were actually taken away. It appears it may be an aggravated disciplinary procedure. But without them saying they actually took those credits away, the Court is not aware of that. He has some other remedies in the jail if he wanted to contest their administrative rulings, but we just need to know whether or not the jail took away those credits.
“[Defense Counsel]: That’s true. I don’t know how soon it would take them to –-
“THE DEFENDANT: I know the answer.
“[Defense Counsel]: I don’t know how soon it would take them to get the information to us.
“THE COURT: Well, Probation is normally here. But we will order Probation to find out for this afternoon’s –-
“[Defense Counsel]: All right, sir. That would be fine.
“THE COURT: -- hearing. For them to contact the jail, and determine whether or not this was a procedure that they took away the credits, or that they just were asking the Court, because of his conduct generally.
“[Defense Counsel]: Correct.
“THE COURT: There is a big difference.”
The trial court trailed the matter to the afternoon calendar. That afternoon, the probation officer clarified that the jail was seeking denial of 51 days of conduct credit based on defendant’s behavior in jail. There was also an additional span of time the probation officer was deducting credits due to defendant’s alleged parole ineligibility, which defense counsel contested. The trial court ordered the probation department to submit a letter clarifying its position on appropriate custody credits.
On December 9, 2010, the probation department filed a letter indicating defendant had served 252 actual presentence days. The letter further stated: “It is recommended the defendant be denied fifty-one days of custody credits from August 29, 2010, to October 18, 2010. His poor behavior while in custody at the Tehama County Jail is listed in the presentence report.” On that same date, without further hearing, the trial court issued a minute order stating: “Upon receipt of the Probation Officer’s letter of December 9, 2010, the Court grants the following custody credits as of December 6, 2010: [¶] 252 actual days. 201 conduct credits. Total: 453 days. [¶] The Clerk is directed to reflect these credits in the Abstract of Judgment.”
DISCUSSION
Defendant contends the case must be remanded because the trial court misunderstood its discretion regarding his presentence credit. We agree that the matter should be remanded.
Under Penal Code section 4019, certain prisoners, such as defendant here, are entitled to good behavior credit for time spent in county jail, “unless it appears by the record that the prisoner has not satisfactorily complied with . . . [jail] rules and regulations . . . .” (Pen. Code, § 4019, subds. (a) & (c).) Conduct credit for presentence custody is credited to the defendant’s term of imprisonment “in the discretion of the court imposing the sentence.” (Pen. Code, § 2900.5, subd. (a).)
The sheriff’s role with respect to presentence credit is to provide the sentencing court with information, records, and recommendations. (Cal. Rules of Court, rule 4.472; People v. Duesler (1988) 203 Cal.App.3d 273, 276 (Duesler).) The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credit. (Duesler, supra, 203 Cal.App.3d at p. 276.) It is then the duty of the sentencing court to determine “the total number of days to be credited” for presentence custody. (Pen. Code, § 2900.5, subd. (d); Duesler, supra, 203 Cal.App.3d at p. 276.)
The trial court incorrectly stated that the jail determines credits and that “[i]f they took away conduct credits, [defendant] is not entitled to them.” Later, when the probation letter recommended that the trial court deduct 51 days of credit based on defendant’s behavior in jail, the trial court did so. Normally we would presume that the trial court properly exercised its discretion in issuing its presentence credit order, but in this case the trial court’s prior comments tend to undermine that presumption. Under the circumstances, we will remand the matter and direct the trial court to conduct a hearing and determine defendant’s presentence credit.
The People agree that the matter should be remanded, but they argue that another hearing is not necessary. We disagree. An inmate is entitled to certain procedural safeguards before his good time credit can be deducted (Duesler, supra, 203 Cal.App.3d at p. 276), including notice and an opportunity to rebut the findings of his jail violations and present any mitigating factors. (Id. at p. 277.)
The People assert that no hearing is needed because the trial court merely needs to recalculate defendant’s credits. But it would be “manifestly unfair” to permit the trial court to exercise its discretion without giving the defendant an opportunity to address the issue. (People v. Rodriguez (1998) 17 Cal.4th 253, 260; see also In re Williams (2000) 83 Cal.App.4th 936, 942-943; compare with People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474.)
We also disagree with the People’s assertion that defendant was already afforded a full hearing on the matter. Defendant should have an opportunity to respond to the alleged jail violations and to present any mitigating factors to the court. Although his trial counsel previously made certain comments on the issue, defendant did not receive a full hearing on the matter.[1]
DISPOSITION
The judgment is reversed and remanded for the limited purpose of determining defendant’s presentence credit. The trial court is directed to conduct a hearing in the presence of defendant, his counsel and the People, and to determine defendant’s presentence credit. In all other respects the judgment is affirmed.



MAURO , J.



We concur:



RAYE , P. J.



ROBIE , J.







Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---