P. v. Casarez
Filed 5/8/13 P. v. Casarez CA6
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opinion has not been certified for publication or ordered published for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.
PAUL STEVE CASAREZ,
Defendant and
Appellant.
H038478
(San Benito
County
Super. Ct.
Nos. CR-11-01168,
CR-12-00027)
Following
pleas of no contest, defendant Paul Steve Casarez was sentenced at the same
time in multiple cases. On appeal,
defendant challenges the upper term imposed on his conviction of
following revocation of deferred entry of judgment (DEJ) in Case No.
CR-11-01168. He also disputes the
court's calculation of presentence credit in Case Nos. CR-11-01168 and
CR-12-00027.
title="">[1]
We conclude
that the trial court did not err in imposing the upper term in Case No.
CR-11-01168. We agree, however, that
defendant is entitled to additional presentence credit. Accordingly, we modify the judgment and
affirm the judgment as modified.
I
Procedural History
Defendant
was arrested on May 18, 2011
for possession of cocaine. He was in San
Benito County jail
from May 18, 2011 to May 19, 2011.
On July 22, 2011, a complaint (Case No.
CR-11-01168) was filed in San Benito County Superior Court charging defendant
with possessing a controlled substance (cocaine) on or about May 18, 2011 in violation of Health
and Safety Code section 11350, subdivision (a).
On August 16, 2011, defendant appeared
for arraignment. He was referred to the
probation department to be evaluated for the Deferred Entry of Judgment Program
(DEJP). In September 7, 2011, the Probation Officer's Report
indicated that defendant was eligible for the program and it recommended that
defendant be admitted to the program.
hearing date on September 15, 2011.
Defendant
did not appear on September 15, 2011. The minute order indicates bail was set at
$15,000. A felony bench warrant was
issued, reflecting that bail was fixed at $15,000. The warrant required a mandatory appearance
and admission to bail.
name="_ftnref3" title="">[3]
Defendant
was in county jail on December 13,
2011. The same day, a
hearing was held on the warrant return.
At the hearing, the trial court set the next hearing date and released
defendant on his own recognizance (O.R.) in that case.
On December 16, 2011, defendant pleaded
guilty to the possession charge. The
court issued an order granting DEJ pursuant to Penal Code section 1000 et seq.
name="_ftnref4" title="">[4] He was admitted to the DEJP.
On January 7, 2012, defendant was
arrested for offenses committed the previous day. He apparently remained in
county jail from that date forward through the date of sentencing.
On January 10, 2012, a complaint (Case
No. CR-12-00027) was filed in San Benito County Superior Court charging
defendant with committing the following offenses on or about January 6, 2012:
assault with a deadly weapon in violation of section 245, subdivision (a)(1)
(count one), attempted second degree
robbery in violation of section 211 (count two), possession of a firearm in
violation of section 29800, subdivision (a)(1) (count three), carrying a loaded
firearm in violation of section 25850, subdivision (c)(1) (count four), and
possession of a firearm in a public place in violation of section 25300,
subdivision (a) (count five). Defendant
entered a not guilty plea. Bail was set
at $45,000.
A notice,
filed by the San Benito County Probation Department on January 13, 2012,
directed defendant to appear on January 18, 2012 and show cause why the DEJ
order in Case No. CR-11-01168 should not be revoked. Defendant's alleged violation of the DEJP was
his failure to obey all laws.
The January
18, 2012 minute order in Case No. CR-11-01168 reflects that the court summarily
revoked DEJ and continued the matter until January 26, 2012 for a hearing on
the alleged violation of the DEJP.
name="_ftnref5" title="">[5] The box for bail was checked and "body
only" was written in the space for the amount of bail. That minute order also indicated that
defendant was released on O.R. in Case No. CR-12-00027.
The January
24, 2012 minute order in Case Number CR-12-00027 indicated defendant was
released on O.R. but he continued "in custody on other charges." The next hearing was set for January 26,
2012.
On January
26, 2012, in Case Number CR-11-01168, the court rescheduled the hearing on the
alleged violation of the DEJP for February 16, 2012. Again, the box for bail was checked and
"body only" was written in space for the amount of bail.
The January
26, 2012 minute order in Case Number CR-12-00027 reflected that defendant was
released on O.R. in that case but he continued "in custody on other
charges." The next hearing was set
for February 16, 2012.
On February
16, 2012, the next hearing was scheduled for February 23, 2012 and the hearing
on the alleged violation of the DEJP in Case Number CR-11-01168 was reset for
March 2, 2012. On February 23, 2012, the
hearing on March 2, 2012 was confirmed.
On March 2, 2012, the next hearing was scheduled for March 15, 2012 and
the hearing on the alleged violation of the DEJP was reset for March 23, 2012.
On each minute order, the box for bail was checked and "body only"
was written in the space for the amount of bail.
Meanwhile
in Case No CR-12-00027, the preliminary examination initially was first
scheduled to be held on March 2, 2012 but eventually it was rescheduled to
March 23, 2012. Minute orders for February 16, 2012, February 23, 2012,
and March 2, 2012 indicated that defendant was released on O.R. in that case
and "in custody on other charges."
On March
15, 2012, an amended complaint was filed in Case Number CR-12-00027. Defendant appeared and entered a not guilty
plea. The minute order again indicated
that defendant was released on O.R. in that case and "in custody on other
charges."
Also on
March 15, 2012, the hearing on the alleged violation of the DEJP was confirmed
for March 23, 2012 in Case No. CR-11-01168.
The box for bail was checked and "body only" was written in
the space for the amount of bail on the minute order.
On March
23, 2012, another amended complaint was filed in Case No. CR-12-00027. It charged defendant with committing seven
offenses on or about January 6, 2012: attempted carjacking (§§ 215, subd.
(a), 664) (count one); attempted second degree robbery (§ 211) (count
two); active participation in a criminal street gang (§ 186.22, subd. (a))
(count three); exhibiting a firearm (§ 417, subd. (a)(2)(A)) (count four);
felon in possession of a firearm (§ 29800) (count five); felon carrying a
loaded firearm (§ 25850, subd. (c)(1)) (count six); possession of a
firearm in a public place (§ 25300, subd. (a)) (count seven). With respect to counts one (attempted
carjacking) and two (attempted second degree robbery), the amended complaint
alleged a gang enhancement (§ 186.22, subd. (b)(1)(C)), an enhancement for
carrying a firearm in the commission of a street gang crime (§ 12021.5,
subd. (a)), and an enhancement for personal use of a firearm (§ 12022.5,
subd. (a)). With respect to count three
(active participation in a criminal street gang), it alleged enhancements for
carrying a firearm in the commission of a street gang crime (§ 12021.5,
subd. (a)) and personal use of a firearm (§ 12022.5, subd. (a)). With respect to count four (exhibiting a
firearm), it alleged a gang enhancement (§ 186.22, subd. (d)) and an
enhancement for carrying a firearm in the commission of a street gang crime
(§ 12021.5, subd. (a)). With
respect to counts five (felon in possession of a firearm), six (felon carrying
a loaded firearm in a public place), and seven (possession of a firearm in a
public place), the amended complaint alleged a gang enhancement pursuant to
section 186.22, subdivision (b)(1)(A).
The March
23, 2012 minute order in Case No. CR-12-00027 shows that defendant waived a
preliminary examination, the second amended complaint was deemed an
information, and defendant waived time and entered not guilty pleas. It indicated that defendant was released on
O.R. in that case but he was "in custody on other charges." Trial setting was scheduled for April 19,
2012.
Also on
March 23, 2012 in Case No. CR-11-01168, the hearing on the alleged violation of
the DEJP was reset for April 19, 2012.
On April 19, 2012, the hearing regarding the alleged violation of the
DEJP was reset for May 3, 2012. On each minute order, the box for bail was
checked and "body only" was written in the space for the amount of
bail.
On April
19, 2012, trial setting in in Case No. CR-12-00027 was rescheduled for May 3,
2012. The minute order indicated that
defendant was released on O.R. in that case but he was "in custody on
other charges."
Finally on
May 3, 2012, in Case No. CR-12-00027, defendant pleaded no contest to felony
attempted carjacking (§§ 215, 664) (count one) and admitted the
enhancement allegation that he had carried a firearm in connection with a
street-gang crime (§ 12021.5, subd. (a)) and he pleaded no contest to
misdemeanor active participation in a criminal street gang (§ 186.22,
subd. (a) [count three reduced from felony]).
The other special allegations concerning counts one and three were stricken
and the remaining charges were dismissed.
In a third case, Case No. CR-12-00103, defendant pleaded no contest to
misdemeanor false personation (§ 529), a crime originally charged as a
felony.
conditions in Case Number CR-11-01168 based on the crimes to which he pleaded
in Case Nos. CR-12-00027 and CR-12-00103.
Also on May
3, 2012, the court scheduled the three matters for sentencing on June 7,
2012. Defendant was referred to the
probation department for presentencing reports.
The record indicates that defendant was released on O.R. in Case Nos.
CR-12-00027 and CR-12-00103 but he remained "in custody on other
charges." The record reflects a
"body-only hold" continued in Case No. CR-11-01168.
According
to the probation reports, the drug offense, to which defendant pleaded in Case
No. CR-11-01168, came to light when an officer approached two males that he
believed might be burglarizing a parked truck on May 18, 2011. A plastic baggie containing .54 grams of a
white substance, which latter tested positive for cocaine, was found in the
gutter and defendant admitted the "coke" was his. The later crimes to which defendant pleaded
in Case No. CR-12-00027 occurred during what appeared to be an attempted
robbery at a 7-Eleven store on January 6, 2012.
One of the suspects, who was described as wearing a red bandana on his
face and carrying a pistol and later identified as defendant by a female
victim, demanded car keys from a male victim outside the store.
The
probation report for Case No. CR-12-00027 (attempted carjacking, etc.)
indicated defendant had been in county jail from January 10, 2012 (date of
arraignment on original complaint) through and including January 18, 2012
(release on O.R. in that case) for a total of nine actual days served. It indicated that defendant was entitled to
eight days of conduct credit under section 4019.
The
probation report for Case No. CR-11-01168 (possession of controlled substance)
reported defendant had been in county jail on May 18, 2011 (date of arrest) and
May 19, 2011, December 13, 2011 (warrant return), from January 7, 2012 (date of
arrest on new charges) through and including January 9, 2012 (day before
arraignment on new charges in Case No. CR-12-00027), and from January 19, 2012
(day after summary revocation of DEJ) through and including June 7, 2012 (the
date of sentencing) for a total of 147 days.
It indicated that defendant was entitled to only 22 days of conduct
credit, 15 percent of the actual days served based on section 2933.1.
Defendant
remained in custody until he was sentenced on June 7, 2012.
On June 7,
2012, the court sentenced defendant as follows.
In Case No. CR-12-00027, the court imposed an upper prison term of four
and a half years on count one plus a two-year prison enhancement pursuant to
section 12021.5, for a total prison term of six and a half years. The court also imposed a concurrent one-year
jail term on count three in that case.
In Case No. CR-11-01168, the court imposed an upper three-year prison
term to be served concurrently with the sentence imposed in Case No.
CR-12-00027. At the sentencing hearing,
defense counsel argued that the circumstances at the time of defendant's plea
did not justify imposition of the upper term.
In Case No. CR-12-00103, the court sentenced defendant to a one-year
jail term for misdemeanor false personation to be served concurrently with the
state prison sentences imposed in the other two cases.
In Case No.
CR-12-00027 (attempted carjacking, etc.), the court awarded credit for nine
actual days and eight days conduct credit (§ 4019) for a total of 17 days
credit for time served as recommended by the probation report. In Case Number CR-11-01168 (possession of a
controlled substance), the court awarded credit for 147 actual days and 29 days
conduct credit for a total of 176 days credit for time served. It indicated that it was applying a 20
percent limitation on conduct credit.
Defendant
was remanded to the custody of the sheriff for delivery to the
II
Discussion
A.
The
sentencing court explained that it was imposing the upper term on defendant's
conviction of possession of a controlled substance in Case Number CR-11-01168
"based upon his total behavior, which indicates that he's a serious danger
to society." (See California Rules
of Court, rule 4.421(b)(1)
name="_ftnref7" title="">[7]
[circumstances in aggravation include: "The defendant has engaged in
violent conduct that indicates a serious danger to society"].)
Defendant
asserts that the trial court was not permitted to consider his behavior
following his guilty plea and therefore the court had no valid basis for
sentencing him to the upper term. In
making this argument, he analogizes DEJ to probation and relies on rule
4.435(b)(1) and People v. Colley
(1980) 113 Cal.App.3d 870.
Respondent agrees with defendant's analysis. This court, however, is not persuaded.
Subdivision
(b) of rule 4.435, which concerns sentencing on revocation of probation,
provides in pertinent part: "On
revocation and termination of probation under section 1203.2, when the
sentencing judge determines that the defendant will be committed to
prison: [¶] (1) If the imposition of sentence was
previously suspended, the judge must impose judgment and sentence after
considering any findings previously made and hearing and determining the
matters enumerated in rule 4.433(c).
[¶] The length of the sentence must be based on circumstances existing at
the time probation was granted, and subsequent
events may not be considered in selecting the base term or in deciding
whether to strike the additional punishment for enhancements charged and
found." (Italics added.)
The
Advisory Committee Comment following the rule states: "The restriction of
subdivision (b)(1) [of Rule 4.435] is based on In re Rodriguez (1975) 14 Cal.3d 639, 652: '[T]he primary term must
reflect the circumstances existing at the time of the
offense.' " (Advisory Com.
com., 23, Pt. 1B West's Ann. Code, Court Rules (2006 ed.) foll. Rule 4.435, p.
318.) As will be discussed, the
issues that arose in the context of indeterminate, rather than determinate,
sentencing.
In
cited by defendant, defendant Colley was convicted by plea of first degree
burglary and the trial court granted probation.
(Id. at p. 871.) In January 1978, the trial court found the
defendant had violated probation and sentenced him to the middle prison
term. (Ibid.) The trial court then
recalled the sentence pursuant to former section 1170, subdivision (d), and
again granted probation. (
convicted of petty theft, the trial court again revoked probation but this time
sentenced the defendant to the upper term.
(Id. at p. 872.)
The
appellate court in Colley concluded
that imposition of the upper term following the second revocation of probation
violated former rule 435(b)(1) (now rule 4.435(b)(1)) and In re Rodriguez, supra,
14 Cal.3d 639 because it was based upon the defendant's poor performance on
probation. (Colley, supra, 113 Cal.App.3d at p. 873.) It indicated that the selection of the
appropriate term was required to be "predicated upon appellant's record
and concluded that the trial court's choice of the upper term was impliedly not
based on that record. (
the middle term and affirmed the judgment as modified. (Ibid.)
Defendant
has not convinced us that rule 4.435 must or should be followed in sentencing
on revocation of DEJ for a number of reasons. First, by its terms, rule 4.435
applies to only sentencing on revocation of probation, not DEJ. Second, People
v. Colley, supra, 113
Cal.App.3d 870 involved the recall of a sentence and it has been
criticized on other grounds. Former
section 1170, subdivision (d), which was in effect in Colley, required, as does the current version, that the new
sentence, if any, upon recall be no greater than the initial sentence. (Stats. 1977, ch. 165, § 15, pp.
648-649.) That initial sentence in
v. Colley, supra, 113
Cal.App.3d 871.)
In
141 (review den. Mar. 13, 1991), the First District Court of Appeal agreed that
in In re Rodriguez, "the
inspiration for [former] rule 435(b)(1), may have been partly undercut by
recent Supreme Court precedent, at least in a determinate-sentence
context." (Id. at p. 146.) It held that
"when a court reinstates probation under the circumstances present here, a
later sentence upon revocation of the reinstated probation may take into
account events occurring between the original grant and the reinstatement. [¶] To
hold otherwise would seriously impede a court's flexibility to deal effectively
with the offender who, granted the 'clemency and grace' of probation in the
hopes of achieving rehabilitation (People
v. Rodriguez (1990) 51 Cal.3d 437, 445), proves unable to abide by the
conditions of that liberty the first time
out. Allowing an
offender to fail multiple grants of probation with absolute impunity under
[former] rule 435(b)(1) would discourage a court from ever reinstating
probation." (Id. at p. 147.)
Third, the
statement in In re Rodriguez from
which the limitation of rule 4.435(b)(1) was derived had nothing to do with
selecting a determinate term of punishment but rather arose in the context of
indeterminate sentencing. "Before
July 1, 1977, California law provided for indeterminate sentencing. Under that sentencing scheme, penal statutes
specified a minimum and a maximum sentence for felonies, often ranging broadly
from as little as one year in prison to imprisonment for life. [Citation.]
A trial court would simply sentence a defendant to prison for 'the term
prescribed by law,' while the actual length of a defendant's term, within the
statutory maximum and minimum, was determined by the Adult Authority. [Citations.]" (People
v. Jefferson (1999) 21 Cal.4th 86, 94.)
In
of an indeterminate sentence of one year to life for violation of former Penal
Code section 288, argued that "the statutory life maximum term" was
unconstitutionally "disproportionate to the offense" and the Adult
Authority had abused its discretion "in failing to fix a lesser term than
the statutory life maximum term . . . ."
(Id. at pp. 642-643.) The Supreme Court concluded that the penalty
provision of former section 288 was constitutional but the Adult Authority had
"failed to properly interpret and administer the Indeterminate Sentence
Law" and petitioner was "entitled to be discharged from his
term." (Id. at p. 643.)
With regard
to the responsibility of the Adult Authority to fix the term of the offense,
the Supreme Court stated: "This
basic term-fixing responsibility of the Authority is independent of the
Authority's power to grant parole and of its discretionary power to later
reduce the term thus fixed, which fixed, constitutionally proportionate, term
we shall hereafter refer to as the 'primary term.' The Authority's power to grant parole and to
later reduce the primary term remain unaffected. That power enables the Authority to give
recognition to a prisoner's good conduct in prison, his efforts toward
rehabilitation, and his readiness to lead a crime-free life in society. On the other hand, this discretionary power
also permits the Authority to retain a prisoner for the full primary term if
his release might pose a danger to society [citation] and to revoke parole,
rescind an unexecuted grant of parole and refix a reduced term at a greater
number of years up to the primary term if the prisoner or parolee engages in conduct
which affords cause to believe he cannot or will not conform to the conditions
of parole, or would pose a danger to society if free. [Citations.]
These considerations, however, are based in large measure on occurrences
subsequent to the commission of the offense.
[¶] Conversely, the primary term
must reflect the circumstances existing at the time of the offense. Both the Eighth Amendment and article I,
section 17, proscribe punishment which is disproportionate to the particular
offense." (Id. at p. 652.) The Supreme
Court held that "[b]ecause [the Adult Authority] has not distinguished its
responsibility to fix the primary term of prisoners subject to the
Indeterminate Sentence Law from its parole-granting function, and because it
has determined that petitioner is not ready for parole, it has either failed to
fulfill its obligation to fix petitioner's term at a number of years
proportionate to his offense, or, having impliedly fixed it at life [citation],
has imposed excessive punishment on him."
(Id. at p. 653, fn. omitted.)
The
California Supreme Court's statements in In
re Rodriguez (1975) 14 Cal.3d 639 must be understood in the context in
which they were made. " 'It is
axiomatic that language in a judicial opinion is to be understood in accordance
with the facts and issues before the court.
An opinion is not authority for propositions not considered.' (Chevron
U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195
. . . .)" (
Cal.4th 659, 680.)
Our fourth
reason for rejecting defendant's contentions is based on determinate sentencing
law and rules, which contemplate that appropriate term of imprisonment will be
selected based on the "circumstances in aggravation or mitigation, and
sentencing decision." (Rule
4.420(b), italics added; see § 1170, subds. (a)(3) ["In sentencing
the convicted person, the court shall apply the sentencing rules of the
Judicial Council"], (b) ["The court shall select the term which, in
the court's discretion, best serves the interests of justice"].) Rule 4.421 makes clear that the
"[c]ircumstances in aggravation include factors relating to the
crime" as well as "factors relating to the defendant." (Rule 4.421.)
The factors relating to the defendant include the circumstance that the
"defendant has engaged in violent conduct that indicates a serious danger
to society." (Rule 4.421(b)(1).)
The
Advisory Committee Comment following rule 4.421 also cites In re Rodriguez, supra,
14 Cal.3d 639 and states: "Refusal
to consider the personal characteristics of the defendant in imposing sentence
would also raise serious constitutional questions. The California Supreme Court has held that
sentencing decisions must take into account 'the nature of the offense and/or
the offender, with particular regard to the degree of danger both present to
society.' In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting
425. In In re Rodriguez the court released petitioner from further
incarceration because '[I]t appears that neither the circumstances of his
offense nor his personal characteristics
establish a danger to society sufficient to justify such a prolonged period of
imprisonment.' (Id. at 655.) (Footnote omitted,
emphasis added.) 'For the determination
of sentences, justice generally requires . . . that there be taken
into account the circumstances of the offense together with the character and
propensities of the offender.' [¶] (Pennsylvania
v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in
189.)"
title="">[8] (Advisory Com. com., 23, Pt. 1B West's Ann.
Code, Court Rules (2006 ed.) foll. rule 4.421, pp. 266-267.)
In
1170, the appellate court held that the "defendant's conduct subsequent to
the charged offense was properly considered as a factor in
aggravation." (Id. at p. 1173, review den. May 31, 1989.) The defendant had been convicted of voluntary
manslaughter for shooting a neighbor. (
had properly imposed the upper term based upon the defendant's subsequent
conviction for firing three shots from a revolver at a gas station attendant. (Id.
at pp. 1172-1173.) The court
observed: "Some appellate courts
have described Rodriguez's
no-subsequent-conduct rule as remaining applicable under determinate sentencing
law, although none have applied it to the initial choice of a base term. [Citations.]
The California Supreme Court, however, does not appear to interpret
defendant's conduct between commission of the offense and the time of
sentencing to justify a more severe sentence." (Id.
at p. 1173.)
We conclude
that defendant's reliance on rule 4.435(b)(1) is misplaced. While probation and DEJ dispositions have
many similarities, there are also differences.
(See People v. Mazurette
(2001) 24 Cal.4th 789, 796.) We decline
to extend to rule 4.435's restriction on sentencing on revocation of probation
to sentencing on the revocation of DEJ based upon defendant's limited argument
that these dispositions are similar.
B.
1.
"Persons
who remain in custody prior to sentencing receive credit against their prison terms
for all of those days spent in custody prior to sentencing, so long as the
presentence custody is attributable to the conduct that led to the
conviction. (§ 2900.5.) This form of credit ordinarily is referred to
as credit for time served. [¶] Additional credit may be earned, based upon
the defendant's work and good conduct during presentence incarceration. (§§ 2900.5, subd. (a), 4019.) Such presentence credit is referred to as
conduct credit. (See
40.)" (People v. Duff (2010) 50 Cal.4th 787, 793.)
Section
2900.5, subdivision (a), states in pertinent part and effectively stated at all
pertinent times: "In all felony and
misdemeanor convictions . . . , when the defendant has been in
custody , including, but not limited to, any time spent in a jail
. . . , all days of custody of the defendant , including days
. . . credited to the period of confinement pursuant to Section 4019
. . . , shall be credited upon his or her term of imprisonment
. . . ." (Stats. 2011,
ch. 15, § 466, p. 480, eff. April 4, 2011, operative Oct. 1, 2011, see
Stats.1998, ch. 338, § 6, pp. 2718-2719, eff. Aug. 21, 1998, operative
Jan. 1, 1999; see also Stats. 2011, ch. 15, § 636, p. 622; Stats. 2011,
ch. 40, § 3, p. 1748, eff. June 30, 2011.)
A partial day spent in county jail is counted as a day of custody for
which a defendant is entitled to credit.
(People v. King (1992) 3
Cal.App.4th 882, 886; People v. Smith
(1989) 211 Cal.App.3d 523, 526.)
Section
2900.5, subdivision (b), provides and at all relevant times provided: "For
the purposes of this section, credit shall be given only where the custody to
be credited is attributable to proceedings related to the same conduct for
which the defendant has been convicted.
Credit shall be given only once for a single period of custody
attributable to multiple offenses for which a consecutive sentence is
imposed." (Stats. 2011, ch. 15,
§ 466, pp. 480-481, eff. April 4, 2011, operative Oct. 1, 2011;
Stats.1998, ch. 338, § 6, pp. 2718-2719, eff. Aug. 21, 1998, operative
Jan. 1, 1999; see Stats. 2011, ch. 15, § 636, p. 622; Stats. 2011, ch. 40,
§ 3, p. 1748, eff. June 30, 2011; Stats. 2011, ch. 40, § 3, p. 1748,
eff. June 30, 2011.)
Effective
September 28, 2010, the Legislature amended section 4019 and section 2933. (Stats. 2010, ch. 426, §§ 1, 2, pp.
2087-2088.) That amendment of section
2933 allowed certain defendants who were sentenced to state prison and for whom
the sentence was executed to earn presentence conduct credit at the rate of one
day for every day of actual custody "[n]otwithstanding Section
4019." (Stats. 2010, ch. 426,
§ 1, p. 2087, eff. Sept. 28, 2010 [former § 2933, subd. (e)].) This was the law in effect during May 2011,
when defendant committed the crime of which he was convicted in Case No.
CR-11-01168 and when he was first confined in county jail on that offense.
The current
version of section 4019 went into effect on September 21, 2011 and became
operative October 1, 2011. (Stats.
2011-2012, 1st Ex. Sess., ch. 12, §§ 35, 47, pp. 5976-5977, 5981.) Section 4019 presently allows a term of four
days to be deemed served for every two days spent in actual presentence custody
based on a defendant's conduct.
name="_ftnref9" title="">[9] (§ 4019, subds. (b), (c), &
(f).) It applies, however, only to crimes
committed on or after October 1, 2011.
(§ 4019, subd. (h).) It
states: "Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by
the prior law." (
The various
permutations of section 4019 since its amendment effective September 28, 2010
have not applied to defendant's possession of a controlled substance offense
committed in May 2011.
name="_ftnref10" title="">[10] Section 2933 has been amended to no longer
provide for presentence conduct credit.
(Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16, p. 5963, eff. Sept.
21, 2011 and operative Oct. 1, 2011.)
2.
Custody
a.
The
California Supreme Court has recognized that "there is no simple or
universal formula to solve all presentence credit issues" but the
"aim is to provide for section 2900.5 a construction which is faithful to
its language, which produces fair and reasonable results in a majority of
cases, and which can be readily understood and applied by trial
courts." (In re Joyner (1989) 48 Cal.3d 487, 495 (Joyner), accord People v.
Bruner (1995) 9 Cal.4th 1178, 1195 (Bruner).) "As with many determinations of credit,
a seemingly simple question can reveal hidden complexities. Although the statutory language in section
2900.5 'may appear to have meaning which is self-evident, the appellate courts
have had considerable difficulty in applying the words to novel facts.' [Citation.]
'Probably the only sure consensus among the appellate courts is a
recognition that section 2900.5, subdivision (b), is "difficult to
interpret and apply."
[Citation.] As [the California
Supreme Court has] noted, in what is surely an understatement, "[c]redit
determination is not a simple matter." ' [Citation.]" (In re
Marquez (2003) 30 Cal.4th 14, 19.)
In
Joyner, supra, 48 Cal.3d 487, which involved
Florida, the Supreme Court established a "strict causation" test for
the award of presentence custody credits under section 2900.5. It held: "[A] period of time previously
credited against a sentence for unrelated offenses cannot be deemed
'attributable to proceedings' resulting in a later-imposed sentence unless it
is demonstrated that the claimant would have been at liberty during the period
were it not for a restraint relating to the proceedings resulting in the later
sentence. In other words, duplicative
credits against separately imposed concurrent sentences for unrelated offenses
will be granted only on a showing of strict causation." (Id.
at p. 489.)
In
reaching its holding in Joyner, the
Supreme Court examined the purposes for presentence credits: "(1)
eliminating the unequal treatment suffered by indigent defendants who, because
of their inability to post bail, serve a longer overall confinement for a given
offense than their wealthier counterparts [citation] and (2) equalizing the
actual time served in custody by defendants convicted of the same offense
[citation]." (Id. at p. 494.) It noted
that both "purposes are concerned with equalizing the treatment of
different individuals each convicted in a single proceeding of the same offense
or offenses." (Ibid.)
In
Bruner, supra, 9 Cal.4th 1178, the Supreme Court applied
test to a different factual scenario.
Defendant Bruner was convicted of a new crime and received a prison
sentence "concurrent" to a term he was already serving for violation
of his parole in another case. (
violator was based in part on the same drug incident that led to the later
conviction, but also upon additional, unrelated grounds." (Ibid.) The court held: "[W]hen presentence
custody may be concurrently attributable to two or more unrelated acts, and
where the defendant has already received credit for such custody in another
proceeding, the strict causation rules of Joyner
should apply. Here, defendant received
credit for all presentence custody in his parole revocation proceeding, and he
has failed to demonstrate that but for the cocaine possession leading to his
current sentence, he would have been free, or at least bailable, during that
presentence period. Hence, he is not
entitled to duplicative credit against the current sentence." (Id.
at pp. 1180-1181.)
"a general rule," not limited to the dual jurisdiction situation in
entitled to credit for presentence confinement unless he shows that the conduct
which led to his conviction was the sole reason for his loss of liberty during
the presentence period." (
"strict causation" but explained that "it arises from the
limited purposes of the credit statute itself." (Id.
at p. 1193.)
In
Bruner, the Supreme Court briefly
discussed the second sentence of section 2900.5, subdivision (b), which limits
credit where a single period of custody is attributable to multiple offenses
subjected to consecutive sentences. It
noted: "[T]here is no indication the 1978 amendment [to section 2900.5,
which added the second sentence to subdivision (b),] was concerned with
concurrent sentences for unrelated conduct imposed in multiple proceedings. By its
terms, the amendment does no more than clarify that when consecutive terms are
imposed for multiple offenses in a single proceeding, only one of the terms
shall receive credit for presentence custody, while leaving undisturbed the
accepted principle that when concurrent
sentences are imposed at the same time, presentence custody is credited against
all." (Bruner, supra, 9 Cal.4th
at p. 1192, fn. 9.)
As
alluded to in Bruner, an altogether
different situation exists where presentence custody is attributable to
multiple instances of unrelated criminal conduct that are charged together and
the court simultaneously imposes concurrent sentences. "If the defendant is arrested and
charged with multiple offenses, the presentence time is credited against the
term imposed on each crime where concurrent sentences are imposed. (People
v. Schuler (1977) 76 Cal.App.3d 324, 330.)
Thus, if the multiple crimes are prosecuted in a single proceeding and
concurrent sentences are ordered, it makes no difference that the crimes were
committed at different times." (
868, 875-876; see People v. Ayon
(1987) 196 Cal.App.3d 1114, 1117.)
906, extended this analysis to simultaneous concurrent sentencing in multiple
cases. In Kunath, the defendant was "in presentence custody on mere
charges of crime until he was sentenced simultaneously" in two separate
cases. (Id. at p. 911.) Defendant
Kunath was first arrested for possession of a controlled substance for sale and
released on bond in that case. (
unrelated possession of a controlled substance and confined pending trial. (Ibid.) After he pleaded guilty in both cases, he was
sentenced to concurrent prison terms in a single sentencing hearing. (Ibid.) The appellate court determined that, under
section 2900.5, "when concurrent sentences are imposed at the same time
for unrelated crimes, the defendant is entitled to presentence custody credits
on each sentence, provided he is not also in postsentence custody for another
crime." (Id. at p. 908.) It
reasoned: "Where . . .
the defendant's custody is solely presentence on all charges and he is
simultaneously sentenced on all charges to concurrent terms, the policy behind
section 2900.5 applies. Presentence
custody credits must apply to all charges to equalize the total time in custody
between those who obtain presentence release and those who do not." (Id.
at p. 911.)
b.
Defendant
was initially arrested on January 7, 2012 for conduct leading to the charges in
Case No. CR-12-00027 and retained in local custody from that date forward
through sentencing. As indicated, the
probation report recommended that defendant be credited only for presentence
custody from January 10, 2012 (date of arraignment on the original complaint in
Case No. CR-12-00027) to January 18, 2012 (release on O.R. in Case No.
CR-12-00027). The court impliedly
followed this recommendation.
On
appeal, the parties agree that custody from January 7, 2012, the date of
arrest, to June 7, 2012, the date of sentencing, was "attributable to
proceedings related to the same conduct for which the defendant has been
convicted" in Case No. CR-12-00027.
(§ 2900.5, subd. (b).) Even
though defendant was theoretically entitled to release on O.R. in CR-12-00027
from January 18, 2012 onward, it appears from the record that defendant
remained in custody through sentencing because he did not obtain release in
Case No. CR-11-01168. The continuing
custody in that case was based upon defendant's failure to obey all laws, which
defendant maintains was "wholly attributable to the charges in the attempted
carjacking case . . . ." (Case No. CR-12-00027). The Attorney General concedes this claim,
stating the defendant "would not have been in custody from January to June
2012 but for the crimes he committed in case number 27."
Defendant
compares this case to People v. Williams
(1992) 10 Cal.App.4th 827. In
the appellate court had determined that the defendant was "entitled to
credit against his sentence for time spent in custody on the probation
revocation because this custody arose from the identical conduct that led to
the criminal sentence." (
pointed out that one of the reasons for the appellate court's decision was that
"the record of the probation revocation disclosed no basis for a
conclusion that the 'obey all laws' violation related to anything except the
kidnapping-assault case." (
It noted that a second reason was that "the mere dismissal of
certain counts in the criminal proceeding, all of which counts stemmed from the
same criminal episode, did not mean that the revocation was based on conduct
different from that leading to the criminal sentence. [Citation.]" (Ibid.)
While the
facts of Williams are not exactly
analogous to the circumstances of this case, we find the following principle to
be sound: the dismissal of some counts
of a multiple-count information does not cause presentence custody resulting
from a criminal episode, which leads to probation revocation in an earlier
case, to necessarily become nonattributable where the criminal proceeding
continues to relate to that same conduct and defendant is convicted. (See People
v. Williams, supra, 10
Cal.App.4th at pp. 829, 832-835.) Also,
similar to the situation in Williams,
it appears that the only basis for the court's summary revocation of DEJ for
defendant's violation of the DEJP's "obey all laws" condition in Case
No. CR-11-01168 was defendant's criminal conduct that resulted in the
convictions in Case No. CR-12-00027.
Thus, all of defendant's presentence custody following his arrest on
January 7, 2012 was attributable to his criminal conduct on January 6,
2012. Since the trial court
simultaneously sentenced defendant to concurrent terms, this case does not
present any issue of duplicative credit applied to terms of incarceration
imposed at different times resulting in a windfall to a defendant. (See Bruner,
supra, 9 Cal.4th at pp. 1191-1193;
see also In re Marquez,
requirement of 'strict causation,' on which this court relied in
applicable in cases involving the possibility of duplicate credit that might
create a windfall for the defendant"]; cf. People v. Kunath, supra,
203 Cal.App.4th at pp. 908-911.)
Accordingly, we agree that defendant is entitled under section 2900.5,
subdivision (b), to credit for time spent in jail from the date of his arrest
on January 7, 2012 until he was sentenced on June 7, 2012, a total of 153
actual days.
title="">[11]
c.
In
Case No. CR-11-01168, the probation report recommended that defendant be given
presentence credit for a total of 147 actual days. Those days of actual custody included three
days in early January, specifically January 7, 2012 (the date of his arrest for
conduct leading to the charges in Case No. CR-12-00027) through and including
January 9, 2012 (the day before defendant's arraignment in Case No.
CR-12-00027). No credit was given for
January 18, 2012, the date the court summarily revoked DEJ in Case No.
CR-11-01168 and released defendant on O.R. in Case No. CR-12-00027. The court impliedly followed the probation
officer's recommendation regarding calculation of the actual days served.
We
asked the parties to address in supplemental briefing whether defendant was
entitled to any presentence credit in Case No. CR-11-01168 during the month of
January 2012 before summary revocation of DEJ on January 18, 2012 or for
custody on January 18, 2012. It
appears from the record that, following his arrest on January 7, 2012, defendant
was not initially in custody attributable to proceedings related to the same
conduct for which the defendant was convicted in Case No. CR-11-01168, namely
possession of a controlled substance.
Once the court summarily revoked DEJ pending hearing on the alleged
violation of the DEJP's terms and conditions, defendant's custody in Case No
CR-11-01168 was then also attributable to the proceedings related to the same
conduct for which the defendant was convicted in that case.
In
People v. Pruitt (2008) 161
Cal.App.4th 637, a defendant appealed from a judgment following revocation of
probation. He challenged the trial
court's refusal to award credit for a period of presentence custody from the
date of his arrest on new charges to the day before summary revocation of
probation. (Id. at pp. 639-641.) After
the probation violation hearing, the defendant became subject to the previously
suspended sentence. (
in furtherance of justice (§ 1385) at the request of the People. (Id.
at pp. 640-641.) The issue on appeal was
whether the defendant was entitled to presentence custody credit "for the
time spent in jail on the new criminal charges following . . . arrest
but prior to the summary revocation of . . . probation." (Id.
at p. 639.)
The
appellate court concluded that defendant Pruitt was not entitled to custody
credit in the probation case for "an initial period solely attributable to
the new charges" in the separate case.
(Id. at p. 649.) It explained: "That custody, even though
based on the conduct that ultimately led to revocation of his probation, was
clearly and simply not for the same conduct for which he had been convicted and
sentenced. In the words of section
2900.5, subdivision (b), that initial custody was not 'attributable to
proceedings related to the same conduct for which the defendant has been
convicted.' " (
We
similarly conclude that defendant was not entitled to credit in Case No.
CR-11-01168 for the initial period of custody following his January 7, 2012
arrest and prior to summary revocation of DEJ because, during that period,
defendant's custody was attributable solely to new, unrelated criminal
conduct. Courts are statutorily precluded
from giving credit unless "the custody to be credited is attributable to
proceedings related to the same conduct for which the defendant has been
convicted." (§ 2900.5, subd.
(b).)
Defendant's
presentence custody became attributable to the proceedings in Case No.
CR-11-01168 beginning on January 18, 2012, when DEJ was summarily revoked and
defendant remained in custody. (See
cf. People v. Kunath,
purpose of section 2900.5 is to equalize the total time in custody between
those who suffered presentence custody on unproven charges and those who did
not. (See Bruner, supra, 9 Cal.4th
at pp. 1183–1184.)" (
Accordingly, defendant is entitled to credit for 145 actual days spent
in custody, consisting of the three days in custody prior to January 2012 and
142 days spent in custody upon summary revocation of DEJ on January 18, 2012
through sentencing on June 7, 2012. The
parties now agree with this calculation.
3.
a.
The People
do not dispute that, since defendant was entitled to 153 actual days of
presentence custody credit in Case No. CR-12-00027, he is entitled to 152 days
of conduct credit under section 4019.
(h); cf. In re Marquez,
b. Case
No. CR-11-01168
Defendant
asserts that the trial court erred in applying a 20 percent credit limitation
to the calculation of conduct credits in Case No. CR-11-01168. We find merit in this contention.
During voir
dire at the change of plea hearing on May 3, 2012, defendant expressed his
understanding that the felony to which he was pleading (attempted carjacking)
in Case No. CR-12-00027 was a violent felony and a strike under Three Strikes
law. He indicated that he understood
that the credits he would earn in state prison would be subject to a 15 percent
limitation.
In the
probation report for Case No. CR-12-00027 (attempted carjacking, etc.), the 15
percent limitation of section 2933.1, subdivision (c), applicable to
presentence credit was not applied in
calculating the recommended conduct credit.
But in the probation report for Case No. CR-11-01168 (possession of a
controlled substance), this 15 percent limitation was applied and the conduct
credit was calculated to be 22 days.
At the
sentencing hearing, the probation officer explained that she had limited
conduct credit to 15 percent of the actual days in custody because defendant
had admitted that the felony to which he had pleaded was a violent felony and a
strike. Defense counsel argued that
offense was a serious, but not a violent, felony.
to be a serious felony pursuant to section 1192.7 and not a violent felony
under section 667.5 and, therefore, the credits "would be adjusted
accordingly."
The court
awarded credit for 147 actual days plus 29 days of conduct credit, which
reflected a "20 percent limitation," for a total of 176 days of
credit in Case No. CR-11-01168. Defense
counsel asserted that defendant was entitled to "50 percent" conduct
credit and submitted the matter. The
abstract of judgment reflects the court's credit calculation.
In Case
Number CR-11-01168, defendant now reiterates that he was not convicted of a
violent felony (see § 667.5, subd. (c)) and, therefore, the 15 percent
limitation of section 2933.1, subdivision (c), did not apply and he was
entitled to full presentence conduct credit.
Under section 2933.1, subdivision (c), presentence conduct credit is
limited to 15 percent of the actual period of presentence confinement "[n]otwithstanding
Section 4019 or any other provision of law . . . ." It applies to "any person who is
convicted of a felony offense listed in subdivision (c) of Section
667.5." (§ 2933.1, subd.
(a).) The record does not establish that
defendant was convicted of any qualifying violent felony within the meaning of
section 2933.1, subdivision (c). (See
§ 667.5, subd. (c); fn. 12, ante.)
Defendant
also points out the Three Strikes 20 percent credit limitation based on a prior
strike conviction (a prior serious or violent felony) did not apply to him and,
in any event, it applies only to post-sentence credit. (See §§ 667, subd. (c)(5); 1170.12,
subd. (a)(5); see also §§ 667.5, subd. (c) ["violent felony"
defined], § 1192.7, subd. (c) ["serious felony" defined];
cf. § 2933.1, subd. (c).) The
People properly concede that defendant was not subject to a 20 percent credit
limitation.
Defendant
initially asserted on appeal that he is entitled to 147 days of actual credit
and 146 days of conduct credit in Case Number CR-11-01168. The People initially agreed with defendant's
computation. Following our request for
further briefing, both parties agree, as do we, that defendant is entitled to
145 actual days of credit for time served in Case No. CR-11-01168 and 145 days
of conduct credit under former section 2933 (Stats. 2010, ch. 426, § 1, p.
2087), which was in effect on May 18, 2011 when he committed the crime and
which governs under section 4019.
name="_ftnref14" title="">[14] (Cf. People
v. Hul (2013) 213 Cal.App.4th 182, 187 ["under prior law governing
Hul's May 2011 offense date, the 16–month sentence the trial court imposed
would have been served in state prison (former Health & Saf. Code, § 11350,
subd. (a), Stats. 2000, ch. 8 (S.B.550), § 3) not a county jail, and the
applicable rate of presentence conduct credit therefore would have been full,
day-for-day credit (compare former § 2933, with former § 4019)"].)
DISPOSITION
The
judgment is modified to award defendant a total of 305 days of presentence
custody credits, consisting of 153 actual days and 152 days of conduct credit,
in Case No. CR-12-00027. The judgment is
modified to award defendant a total of 290 days of presentence custody credits,
consisting of 145 actual days and 145 days of conduct credit, in Case No.
CR-11-01168. As modified, the judgment
is affirmed. The trial court
is directed to prepare an amended abstract of judgment
reflecting the modifications and to forward a certified copy to the
_______________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
Code section 1237.1 provides: "No appeal shall be taken by the defendant from
a judgment of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the claim in
the trial court at the time of sentencing, or if the error is not discovered
until after sentencing, the defendant first makes a motion for correction of
the record in the trial court."
Defendant does not suggest that he has complied with this statutory
requirement but he argues that we may reach the issue of presentence custody
credit because it is not the only issue on appeal. The People correctly agree. (See People
v. Acosta (1996) 48 Cal.App.4th 411, 420-428.)
to [Penal Code] section 1000, a defendant who has been charged with specified
drug offenses and has not committed a crime of violence or threatened violence
may undergo a drug education and treatment program in lieu of undergoing a
criminal prosecution, and upon satisfactory completion may obtain dismissal of
the criminal charges. [Citation.]" (People
v. Canty (2004) 32 Cal.4th 1266, 1285.)
