P. v. Creswell
Filed 5/30/13 P. v. Creswell 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opinion has not been certified for publication or ordered published for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.
ORLANDO
CRESWELL,
Defendant and
Appellant.
H038097
(Santa Clara
County
Super. Ct.
No. CC816686)
A jury
convicted defendant Orlando Creswell of first
degree robbery in concert, first degree robbery, burglary, and battery. It made no findings, however, on allegations
of six prior convictions for purposes of the Three Strikes law, three prior
serious-felony convictions for purposes of five-year sentence enhancements, and
one prior prison term for purposes of a one-year sentence enhancement. The trial court sentenced defendant under the
Three Strikes law to two consecutive 25-year-to-life terms for the robbery
convictions, one stayed 25-year-to-life term for the burglary conviction, and a
consecutive 31 year term for the enhancements.
Defendant appealed, and we reversed the judgment with directions to hold
a court trial on the allegations. The
trial court found the allegations true and sentenced defendant as before. On appeal, defendant contends that the trial
court erred by (1) denying his motion to dismiss the allegations grounded on
his statutory right to a speedy trial
(Pen. Code, § 1382 [failure to bring action to trial within 60 days after
filing of remittitur]),
name="_ftnref1" title="">[1]
and (2) failing to account for custody credits between his original sentencing
and resentencing. The People concede the
custody-credit issue, and we agree that the concession is appropriate. We otherwise disagree with defendant. We therefore modify and affirm the judgment.
background
We filed
our opinion on August 19, 2011
(People v. Mata et al., H035445
[nonpub. opn.]), and a modification on September
16, 2011. On November 16,
defendant appeared for trial and asked for a Marsden
title="">[2]
hearing. The trial court agreed to
continue the matter until November 30 “for Marsden and court trial. [¶]
Assuming that the Marsden isn’t granted, we’ll do the court trial on that day.†At this point, defense counsel offered: “Although there may be issues from that that
would prevent you from going forward with the court trial.†And the trial court agreed: “It’s possible. I want to put it on for both just for
efficiency purposes. And we’ll see
whether we can go ahead or not depending on the outcome of the Marsden or
anything else.†The trial court’s minute
order records the continuance to November 30 for “Marsden/Court Trial†and
denotes that defendant was “serving sentence.â€
On November
18, 2011, we issued our remittitur, and the trial court filed it on November
21. On November 23, the trial judge’s
clerk signed a “request for action†form for the trial judge’s “review and
instruction†that essentially informed the trial judge of the reversal and the
remand for trial. On November 30,
defendant appeared in court with his counsel.
There is no reporter’s transcript of the proceedings. The trial court’s minute order indicates that
the hearing on the Marsden motion was
taken off calendar. There is no record
of the trial’s disposition except the notation that “DEFENDANT ORDERED TO
RETURN TO CALPATRIA STATE PRISON NO LONGER NEEDED.â€
On February
7, 2012, the trial judge signed the request-for-action form and ordered a
hearing set for February 17. At the
hearing, defendant moved to dismiss the allegations on the ground that 91 days
had passed since our remittitur and there was no good cause for the delay. The trial court disagreed and denied the
motion: “Except that’s why it got on
record, it was defense request at that time.
So that nullifies that argument.
I made sure he got on record. It
was defense request for continuance.â€
Defendant nevertheless offered:
“[Defendant] would politely respond he was not under the jurisdiction of
this court and therefore could not waive such rule and the court didn’t have
the authority to waive that rule, therefore he would again request that the
charge be dismissed or allegation be dismissed in the interest of
justice.†To this, the trial court repeated: “Denied and it was also his request on record
personally. That negates any timeliness
issue. I need to set a date when you’re
going to be ready on your court trial on the priors. [¶] . . . [¶] . . . The
only thing I’m going to litigate is the court trial which we tried to do in
November but he delayed it through his request that there was something pending
in the Supreme Court.†It then set trial
for March 16.
At trial,
defendant repeated his motion to dismiss, and the trial court detailed the
following: “Here’s my time table I have
here, it’s similar to yours. We brought
him back November 16th and he requested a Marsden. We then--and he was asking for some time to
prepare. [¶] On November 30th we set the next court date for the Marsden and
possibly the court trial and it reads in our minute order ‘Marsden/Court Trial
set on 11-30 on 1:30.’ It was
represented on record that the defendant indicated that through his attorney
that he was still on appeal, there was a new appeal and that we could not go
forward and there was an agreement on record that by the attorneys and then the
court to not go forward because he believed he still had a valid appeal
pending. [¶] I got that agreement on record and then everybody agreed to have
him ordered returned to Calipatria State Prison until the matter was settled.
[¶] . . . [¶] . . . It was that it was
at defense request not to proceed with the Marsden or court trial on 11-30
which was after the remitter [sic]
was issued. [¶] And therefore the defense delayed it in their own, on their own
by asking not to proceed and it be sent back.â€
Defendant
later added the following: “And that was
the hearing that was set on November 30th at 1:30 in this department and on
that date [defendant] withdrew his request for a Marsden and the matter was
taken off calendar. [¶] [Defendant] did not waive any time as to when the
matter should be heard pending issuance of the remitter [sic]. In fact, I heard from
his appellate attorney, he told me that there may be some action on the appeal,
don’t do anything on the case until we’ve heard that. [¶] So soon after
November 30th I realized or I received word from [defendant’s] attorney that
the remitter [sic] had issued. But in no way does any request that we made
on November 30th or in our opinion comprise a waiver of that 60 day statutory
period.â€
speedy trial
Code section 1381, which are a construction and implementation of the
California Constitution’s speedy trial guarantee (Cal. Const., art. I, § 15). [Citation.]
‘No affirmative showing of prejudice is necessary to obtain a dismissal
for violation of the state constitutional speedy trial right as construed
and implemented by statute. [Citation.]
Instead, “an unexcused delay beyond the time fixed in section 1382 of
the Penal Code without defendant’s consent entitles the defendant to a
dismissal.†’ †(People v. Villanueva (2011) 196 Cal.App.4th 411, 422 (
(a)(2), provides, in pertinent part, that the trial court “unless good cause to
the contrary is shown, shall order the action to be dismissed . . . [i]n a
felony case, when a defendant is not brought to trial . . . within 60 days . .
. after the filing of the remittitur in the trial court.†“ ‘Good cause within the meaning of section
1382 exists, for example, when the delay beyond the statutory period is caused
by the conduct of the defendant or occurs for his or her benefit . . . .’
†(Villanueva,
specifically codifies this concept by providing that “an action shall not be
dismissed†if (1) the defendant enters a general waiver of the 60-day
requirement, or (2) the defendant “requests or consents to the setting of a
trial date beyond the 60-day period.†(§
1382, subd. (a)(2)(B).)
Defendant
argues that “There is no substantial evidence the delay was caused by [him] as
the court mistakenly found.†According to defendant, the trial court had
no jurisdiction to proceed on November 16, 2011, because the remittitur had not
yet been issued, “The minutes [of November 30] reflect no motions for
continuance or otherwise on that date,†and the trial court “did not intend or
try to proceed with the trial†on November 30.
basis for the delay†between the filing of the remittitur and trial. Defendant’s analysis is erroneous.
One the
most familiar rules of California appellate procedure is that the decision of
the trial court is presumed to
be correct. The existence of error “ ‘ “is never
presumed, but must be affirmatively shown . . . .†. . . ‘[A]ll presumptions
and intendments are in favor of the regularity of the action of the lower court
in the absence of a record to the contrary.’ â€
(People v. Green (1979) 95 Cal.App.3d 991, 1001, quoting People
v. Clifton (1969) 270 Cal.App.2d 860, 862; In re Raymundo B. (1988)
203 Cal.App.3d 1447, 1452; see People v. White Eagle (1996) 48
Cal.App.4th 1511, 1523, quoting
(1987) 195 Cal.App.3d 191, 198 [“We must indulge in every presumption to uphold
a judgment, and it is defendant’s burden on appeal to affirmatively
demonstrate error--it will not be presumed.â€]; People
v. Nitschmann (1995) 35 Cal.App.4th 677, 684 [“Error
is never presumed and appellant has the burden to show
requires us to conclude, in the absence of an affirmative showing to the
contrary, that the trial court did the right thing for the right reasons.
In the present context this means
that, we must indulge in the presumption that official duty is regularly
performed. (Evid. Code, § 664.) Defendant bears the burden of overcoming this
presumption of regularity and must affirmatively
regularly performed. (
appellant. (People v. Sullivan
(2007) 151 Cal.App.4th 524, 549.)
Defendant’s challenge is based on
the supposition that the trial court unilaterally ordered the trial off
calendar or simply forgot about the trial after it ordered the
to perform its official duty to hold a trial on the allegations--a trial that
the court unambiguously set for November 30, 2011. Defendant cites no support for his
supposition in the record and merely speculates that the trial court overlooked
the scheduled trial. Defendant therefore
fails to carry his appellate burden.
In any event, the record can be
interpreted to show that no error occurred.
At the hearing on February 17,
2012, the trial court recalled that, at the Marsden
hearing, defendant had requested a trial continuance because there was
something pending in the Supreme Court.
And, at trial, the trial court recalled that, at the
represented that there was no jurisdiction to proceed because the case was
still on appeal. Responding to the
court’s trial recollection, defense counsel conceded that, at the
defendant’s appellate attorney that the remittitur still had not issued
(remittitur supposition).
name="_ftnref4" title="">[4] Thus, the trial court’s recollection that
defense counsel had a remittitur supposition
at the Marsden hearing is consistent
with counsel’s concession that he had a remittitur supposition at the
remittitur supposition on February 17, the inference is compelling that counsel
communicated his remittitur supposition to the trial court before February 17. And, since the hearing before February 17 was
the Marsden hearing, the inference is
equally compelling that counsel communicated his remittitur supposition at the
communicated his remittitur supposition to the trial court either by merely
representing that the case was still on appeal, requesting an off-calendar
disposition because the case was still on appeal, or objecting to trial because
the case was still on appeal. In any
form, counsel’s communicated remittitur supposition at the Marsden hearing was the equivalent of a request for or consent to
the setting of a trial date beyond the 60-day period.
We nevertheless observe the
following.
“The 60-day period [of section
1382] applies only . . . when the accused is not otherwise incarcerated. . .
. In all instances where the accused is
incarcerated, the 90-day provisions of sections 1381 and 1381.5 apply.†(Sykes v. Superior Court (1973) 9
Cal.3d 83, 89, fn. 6.)
Relying on Sykes, the People make a convincing argument that the governing
statute in this case is section 1381 rather than section 1382. Section 1381 applies “[w]henever a defendant
has been convicted, in any court of this state, of the commission of a felony .
. . and has been sentenced to and has entered upon a term of imprisonment in a
state prison . . . , and at the time of the entry upon the term of imprisonment
. . . there is pending, in any court of this state, any other indictment,
information, complaint, or any criminal proceeding wherein the defendant
remains to be sentenced.†In such a
case, the People are required to bring the defendant to trial within 90 days
after the defendant “shall have delivered to [the] district attorney written
notice of the place of his or her imprisonment . . . and his or her desire to
be brought to trial . . . unless a continuance beyond the 90 days is requested
or consented to by the [defendant], in open court . . . .†(§ 1381.)
In other words, when a defendant is
already serving a prison sentence, the defendant’s statutory entitlement to a
speedy trial depends upon the defendant’s written assertion of that right.
“Whether Penal Code section 1381
applies in this instance appears to depend upon the meaning of the word ‘other’
in the phrase ‘any other indictment, information, [or] complaint’;
specifically, whether ‘other’ includes other charges arising out of the same
information which led to the sentence on which the defendant was
imprisoned. While research has disclosed
no authority addressing the issue, People v. Jacobs (1972) 27 Cal.App.3d
246, which found no equal protection violation in the different treatment of
defendants subject to Penal Code section 1381 and those subject to Penal Code
section 1382, is instructive. [¶] ‘[T]he persons described in the respective
statutes are not in like circumstances.
Section 1382 applies to persons who are not currently serving time as
defined in section 1381. Essentially, section
1382 applies to persons awaiting trial who are either out on bail while
awaiting trial or who are bailable, or who are serving misdemeanor sentences of
less than 90 days. While both sections
contemplate a speedy trial [citation], the danger of suffering imprisonment
during delay is not present where a person is already incarcerated as provided
in section 1381. [Citation.] We perceive also that a person who is
undergoing a prison sentence may prefer not to go to trial while a prisoner
because of the possibility that his status as such a prisoner might prejudice
his trial. We apprehend, too, that there
may be other tactical reasons why a prisoner may not desire to be tried for the
new charge while serving time. In any
event the law grants such a prisoner his options. He may seek an early trial by making a demand
for trial as prescribed by section 1381 or he may elect to defer the making of
such demand until he deems it expedient to do so.’ †(Villanueva,
12.)
Under this rationale, because our
reversal did not affect defendant’s convictions on the substantive offenses and
theoretically allow for bail, defendant was imprisoned because of his
convictions and his speedy trial rights were defined by section 1381, not
section 1382. His failure to assert his
speedy trial rights by requesting a trial on the enhancement allegations
eliminates any burden on the People to bring the allegations to trial. (But see People
v. Martin (1978) 87 Cal.App.3d 573, 575 [“when a conviction is affirmed but
remanded to the trial court to give the People an opportunity to prove the
alleged ‘priors,’ that upon the filing of the remittitur Penal Code section
1382, subdivision 2 appliesâ€--dictum] (Martin).)
custody credits
The trial court awarded defendant
717 days of custody credit (624 actual; 93 conduct) for his time in presentence
custody until his original sentencing.
Defendant argues that he should be awarded an additional 679 days of
custody credit so as to include the period of time that he was in the custody
of the Department of Corrections
following his original sentencing. The
People concede the point.
In People v. Buckhalter
(2001) 26 Cal.4th 20, 37, the court explained the following: “[T]he trial court, having modified
defendant’s sentence on remand, was obliged, in its new abstract of judgment,
to credit him with all actual days he had spent in custody, whether in
jail or prison, up to that time. As we
have seen, the court’s duty in this respect arose from section 2900.1, which
specifies that when a sentence is modified while in progress, the ‘time’
already served ‘shall be credited upon any subsequent sentence [the defendant]
may receive upon a new commitment for the same criminal act or acts.’ â€
disposition
The
judgment is modified to award defendant an additional 679 days of actual
custody credit. As so modified, the
judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Further unspecified statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118
(right to discharge appointed counsel for inadequate representation and
substitute another appointed counsel).
