P. v. Becerra



















Filed 1/18/13 P.
v. Becerra CA6

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




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THE PEOPLE, Plaintiff and Respondent, v. MARIO COTA BECERRA, Defendant and Appellant.

H037373 (Monterey County Super. Ct. No. SS101773)

Mario Cota
Becerra, the defendant herein, suffers from a form or forms of href="http://www.sandiegohealthdirectory.com/">schizophrenia. His mental condition may have been an impetus
to a history of stealing from people. In
the current case, he pleaded no contest to second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) On appeal, he claims that confining him in
state prison is unconstitutional given his href="http://www.sandiegohealthdirectory.com/">mental illness. He also claims that the trial court committed
errors regarding his presentence credits.

We will modify
the judgment with respect to defendant’s presentence credits, and as so
modified will affirm it.

FACTS AND PROCEDURAL BACKGROUND

On July 22, 2010,
defendant jumped over the counter of a pizza parlor, pushed an employee aside,
and took $27 from the cash register. A
medical doctor appointed to assess his competence to stand trial (Pen. Code, §§
1368 et seq., 4011.6) found him unable to do so. Under treatment with psychotropic
medications, defendant’s condition improved, and eventually he pleaded no
contest to second degree robbery. He was given a three-year prison sentence but
placed on probation. Thereafter a
probation violation petition was filed against him, alleging failure to keep an
appointment with his doctor and to take his psychotropic medications. The trial court revoked his probation and,
over counsel’s objection that defendant was sufficiently mentally ill that
committing him to prison would violate the Eighth Amendment, imposed the prison
sentence.

DISCUSSION

I. Eighth
Amendment Claim

Defendant renews his claim that confining him in a California prison
under current conditions violates his right to be free of cruel and unusual
punishments under the Eighth and Fourteenth Amendments to the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution.

Defendant relies on Brown v. Plata
(2011) 563 U.S. ___ [131
S.Ct. 1910], which concluded that the mental health care provided to California prison
inmates violated the Eighth Amendment.
“The medical and mental health care provided by California’s prisons
falls below the standard of decency that inheres in the Eighth Amendment. This . . . requires . . .
a reduction in overcrowding.” (>Id. at p. __ [131 S.Ct. at
p. 1947].)

The record offers no indication, however, that the conditions that led
to the Brown decision remain. As noted, the high court linked inadequate
mental health care to overcrowding. The
state thereafter enacted the so-called realignment legislation to eliminate
overcrowding. The initiative has reduced
overcrowding. “Quarterly figures
released by the California Department of Corrections and Rehabilitation
. . . show that during the first 8 months of Assembly Bill 109’s
. . . implementation, commonly referred to as ‘realignment,’ there
has been a 41% reduction in new prison admissions as of March 31, 2012, and a
drop of 28,300 in the prison population as of May 31, 2012.” (UPDATE:
Eight Months into Realignment: Dramatic Reductions in California’s Prisoners, Center on Juvenile and Criminal Justice (June 2012),
available at http://www.cjcj.org/files/Realignment_update_June_19_2012.pdf, as
of Dec. 21, 2012.)

In addition, the high court’s conclusions regarding generally inadequate
mental health care in prison do not establish as a matter of law that defendant
himself will suffer behind prison walls.
On direct appeal, we are limited to the four corners of the record, and
defendant does not advise us of anything in the record that might support his
claim that his own care will be unconstitutionally deficient. There are too many imponderables for his
appeal to succeed. (See >People v. Superior Court (>Himmelsbach) (1986) 186 Cal.App.3d 524,
534-535 [rejecting contention that prominent individual’s imprisonment would
violate Eighth Amendment’s cruel and unusual punishments clause; nothing in the
record suggested that other inmates would necessarily be able to torment the
prisoner, given the availability of special security measures], disapproved on
other grounds in People v. Norrell
(1996) 13 Cal.4th 1, 7, fn. 3, with Norrell
in turn superseded by statutory amendment as described in People v. Kramer (2002) 29 Cal.4th 720, 722.) After defendant reaches state prison, we
presume his mental condition will be evaluated.href="#_ftn1" name="_ftnref1" title="">[1] He might then be prescribed the same
medication that enabled him to understand the criminal proceedings against him
and rationally assist in his defense (see Pen. Code, § 1367 et seq.) after
his initial inability to do so. In that
case, even if overall care for the
mentally ill remains inadequate in the prison system since the time the United
States Supreme Court issued its opinion, defendant’s individual mental condition might be under control and he might not
be affected by any such deficiency.

Although “[a]n appeal is ‘limited to the four corners of the
[underlying] record on appeal,’ ” “[h]abeas corpus is not.” (People
v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) “ ‘[H]abeas corpus may be sought by one
lawfully in custody for the purpose of vindicating rights to which he is
entitled in confinement.’
[Citations.] Those rights include
not only statutory or constitutional violations, but also violations of
administrative regulations.” (>Gomez v. Superior Court (2012) 54
Cal.4th 293, 309, fn. 10.) Should
defendant or others perceive that defendant is receiving constitutionally
inadequate medical care while in prison, defendant is not foreclosed from
petitioning for a writ of habeas corpus.

II. Presentence
Conduct Credits

On April 8, 2011, the trial
court sentenced defendant to probation.
On May 11, 2011, the
authorities arrested defendant and placed him in jail. On September 9, 2011, the court revoked defendant’s probation and
committed him to state prison. These
facts led to a series of complicated calculations regarding presentence
credit. Defendant claims in essence that
the court erred in granting excessive conduct credit on April 8, doing so
by incorrectly including time he spent at Atascadero State Hospital. As a result, he claims, the court erroneously
took the 390-day total it calculated and reduced it to 365 days pursuant to a
waiver defendant had executed. During
the April 8 proceedings, the court concluded that in order to apply the
cap, it had to reduce defendant’s 260 days of actual custody to 245 days. Defendant claims that this was a
miscalculation, made possible by the court’s erroneous inclusion of his time at
Atascadero State Hospital within the
365-day cap he agreed to.

At the time of the original sentencing on April 8, 2011, defendant had served 260 days in custody, 196
of them in county jail and 64 at the Atascadero State Hospital. For all of these days, he is entitled to
custody credit. (Pen. Code,
§ 2900.5, subd. (a).) At that time,
the trial court granted 130 days of conduct credit, for a total of 390 days of
presentence credit. (Pen. Code, former
§ 4019, subds. (b)(2), (c)(2), (f); Stats. 2009-2010, 3rd Ex. Sess., ch.
28, § 50, eff. Jan. 25,
2010 [version in effect from Jan. 25 to Sept. 27, 2010, including July 22, 2010, when defendant
committed the robbery].)

During the same proceeding, defendant agreed to forgo any right he might
have to presentence credits in excess of 365 days. (See People
v. Lara (2012) 54 Cal.4th 896, 903, fn. 3; People v. Black (2009) 176 Cal.App.4th 145, 152.)

After these proceedings took place, defendant was released on
probation. He was rearrested on May 11, 2011, for the probation
violations alleged in this case, after spending 32 days out of jail. At the time of his sentencing and commitment
to state prison on September 9,
2011, he had spent an additional 122 days in custody. Defendant’s prior credit waiver did not apply
to those days, however. At the
April 8, 2011, dispositional hearing, the court explained, and defendant
indicated his understanding, that he was “waiv[ing] . . . credits
above 365 days” but that it was a “limited . . . credit waiver,”
meaning that if he was “confined on a future probation violation [he would]
receive credit for any future confinement.”


Incorrectly calculating custody credits results in an unauthorized
sentence that is correctable at any time.
(People v. Duran (1998)
67 Cal.App.4th 267, 269-270.)

Defendant is correct that the trial court
erred in awarding excessive conduct credits on April 8, 2011, inasmuch as conduct credits were not available for the time he spent
at Atascadero State Hospital. Although a state hospital is
an institution of confinement for purposes of Penal Code section 2900.5 custody
credit, it is not a penal institution for purposes of Penal Code section 4019
conduct credit (People v. Callahan (2006) 144 Cal.App.4th 678,
686). Thus, defendant argues, those 64
days should not have been included in the calculation of conduct credits—they
apply only to custody credits under Penal Code section 2900.5.

The People agree that the conduct credit calculation was erroneous
because the court should not have considered in that calculation the time
defendant spent at Atascadero State Hospital.
As noted, if the 64 days spent at Atascadero are excluded, then defendant’s
penal custody time was 196 days and, because he was convicted of a serious
felony (Pen. Code, § 1192.7, subd. (c)(19)) but was not sentenced to
prison at the time, his conduct credit should have been calculated as 98 days,
i.e., 50 percent of the 196 days (Pen. Code, former § 4019, subds. (b)(2),
(c)(2), (f); Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, eff. Jan. 25,
2010 [version in effect from Jan. 25 to Sept. 27, 2010, including July 22,
2010, when defendant committed the robbery]; see People v. Smith (1989) 211 Cal.App.3d 523, 527.) Accordingly, his total custody credits
at the April 2011 hearing should have been 358 days—the 64 days at Atascadero
State Hospital, the 196 days in jail, and the 98 days of conduct credit. This placed him under the 365-day credit cap
he agreed to.href="#_ftn2"
name="_ftnref2" title="">[2]

As of September 9, 2011, when the trial court committed defendant to
state prison, he had served 382 days in custody: 196 days in jail initially, 122 days in jail
following his arrest on May 11, 2011, and 64 days at Atascadero State
Hospital. So those are his total custody
credits.

The next question is defendant’s Penal Code section 2933.1 conduct
credits as of September 9, 2011, when, to repeat, the trial court
committed him to state prison. These amounted to 318 potential days—the 64
days spent at Atascadero would not count under Penal Code sections 2933.1 or
4019—but defendant’s eligibility is reduced to 15 percent of that 318-day
amount because second degree robbery is a violent felony and he was sentenced
to prison. (Id., §§ 667.5, subd. (c)(9), 2933.1, subds. (a), (c); People v.
Daniels (2003) 106 Cal.App.4th
736, 739.) Fifteen percent of the
318 days in penal custody amounts to 47 days of conduct credits. Defendant argues that it should be 48 days,
but the actual calculation at 15 percent is 47.7 days, and we round this number
down (see People v. Ramos (1996) 50
Cal.App.4th 810, 815-816) because subdivision (c) of section 2933.1 gives
violent offenders who are sent to prison presentence credit that “shall not
exceed 15 percent.” Adding this amount
to the 382 days of custody credit previously calculated results in a total of
429 days of presentence credit, not the 430 days that defendant argues he is
entitled to.

DISPOSITION

The judgment is
modified to award defendant 382 days of actual custody credit under Penal Code
section 2900.5 and 47 days of conduct credit under Penal Code section 2933.1,
for total presentence credits of 429 days.
The trial court is directed to prepare an amended abstract of judgment
reflecting the modification and to forward a certified copy of the amended
abstract to the Department of Corrections
and Rehabilitation. In all other
respects, the judgment is affirmed.













_______________________________

Márquez,
J.









WE CONCUR:













______________________________

Elia,
Acting P. J.















______________________________


Bamattre-Manoukian, J.