P. v. Dennis

Filed 10/10/07 P. v. Dennis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

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This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed an opening brief that sets forth the facts of these cases and requests this court to review the record and determine whether there are any arguable issues on appeal. (Ibid.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

We received a supplemental brief from defendant raising several issues on appeal. Defendant contends: (1) the trial court erred in finding he had served three prior prison terms; (2) there were some gaps in the chain of custody of some evidence; (3) he received ineffective assistance of counsel; and (4) the trial court erred in calculating his custody credits.

Defendant also filed an additional supplemental brief claiming his upper term sentence violated his rights under the Sixth Amendment to the United States Constitution.

We address the issues raised in defendants briefs, review the record as required by Wende, and modify the judgment as to fines, fees, and custody credits.

BACKGROUND

As defendant entered no contest pleas, the facts underlying the offenses are taken from the probation report.

In March 2005, Butte County police officers received an anonymous tip identifying defendant as being responsible for a vehicle theft. When officers found defendant, he had a small bag of methamphetamine in his pocket. Defendant was charged in case No. CM022680 with possession of methamphetamine, receiving stolen property, and unlawful taking of a vehicle. It was also alleged that defendant had served five prior prison terms.

After his motion to suppress evidence was denied, defendant pled no contest to possession of methamphetamine and admitted having served three prior prison terms. In exchange for his plea, the remaining counts and enhancements were dismissed and defendant was placed on Proposition 36 probation.

In October 2005, probation filed a petition for violation of probation alleging defendant had terminated his participation in a residential treatment program without permission of the court. Defendant admitted the violation and his probation was reinstated.

In December 2005, probation filed a second petition alleging defendant had failed to provide a urine sample. A bench warrant was issued for defendants arrest.

In January 2006, Butte County police officers received another anonymous tip as to where defendant was residing. When police found defendant, he and his girlfriend were residing in a stolen travel trailer. Defendant also had a bag of methamphetamine, two hypodermic needles, and a spoon with residue. Defendant was charged in case No. CM024364 with unlawful taking of a vehicle, having sustained a prior auto theft conviction, receiving stolen property, possession of methamphetamine, possession of drug paraphernalia, and possession of a hypodermic needle. It was also alleged defendant had served a prior prison term.

Defendant admitted the violation of probation in case No. CM022680 by failing to submit a urine test. On January 12, 2006, the court found defendant had made himself unavailable for Proposition 36 treatment. Sentencing was continued.

On January 31, 2006, defendant pled no contest to vehicle theft in case No. CM024364. In exchange for his plea, the remaining counts were dismissed. In February 2006, the court terminated defendants probation in case No. CM022680 and sentenced defendant to the upper term of three years for possession of methamphetamine (case No. CM022680), a concurrent upper term of three years for vehicle theft (case No. CM024364) and one year each for the three prior prison terms, for an aggregate prison sentence of six years.

After defendant filed his notice of appeal, the trial court recalled defendants sentence under Penal Code section 1170, subdivision (d),^[1]explaining it had not sufficiently considered some motions defendant had made -- particularly defendants Faretta motion.^[2]

Defendant was brought back from state prison for further proceedings in April 2006. The trial court granted his Faretta motion and allowed defendant to make a number of additional motions. The trial court heard and denied defendants additional motions and, in June 2006, resentenced defendant to the same sentence it had previously imposed. The trial court ordered defendant to pay several fines and fees, including a criminal drug laboratory analysis fee (Health & Saf. Code,  11372.5) and a drug program fee (Health & Saf. Code,  11372.7), along with corresponding penalty assessments. Defendant was awarded two days of custody credit. The trial court found defendant was addicted to narcotics and committed defendant to the California Rehabilitation Center. (Welf. & Inst. Code,  3051.)

DISCUSSION

I.

Defendant Served Three Separate Prior Prison Terms

The trial court found defendant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Defendant contends he served only two separate prison terms within the meaning of section 667.5, subdivision (b). We disagree with defendant.

Section 667.5, subdivision (b), provides for an enhancement of the prison term for a new offense of one year for each prior separate prison term served for any felony, except those previous prison terms unavailable for enhancement by operation of the five-year washout period.

Subdivisions (b), (d) and (g) of section 667.5 require that, in order to qualify for the enhancement, the prison terms must be served separately. Specifically, section 667.5, subdivision (d), provides: For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole, whichever first occurs, including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.

Subdivision (g) of section 667.5 provides: A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration. Prison commitments commenced after a previous term is completed constitute separate periods of incarceration. (People v. Cardenas (1987) 192 Cal.App.3d 51, 59.)

The record in this case reflects that defendant was arrested in February 1990, on a Solano County and a Yuba County case. He was incarcerated in prison on these cases, with the Solano County case running concurrently to the Yuba County case, in March 1993.^[3] In the meantime, defendant had been arrested in a Butte County case in September 1992. Upon his release from prison on the Solano/Yuba County cases in November 1993, he was placed in the Butte County jail. He was convicted in March 1994, and in June 1994, defendant was sentenced to a new prison term on the Butte County case. After defendant was discharged from parole, he was arrested on two new Butte County cases. Defendant was ultimately sentenced to prison in November 2002, on those two cases.

Although defendant was not physically out of custody between his 1993 prison release from the Solano/Yuba County cases and the imposition of his later 1994 prison term from Butte County, each prison term is a separate, completed term, available for enhancement under section 667.5. (See People v. Walkkein (1993) 14 Cal.App.4th 1401, 1409-1411.) The second prison term, the 1994 Butte County sentence, did not commence until after defendant completed his first prison term arising from defendants incarceration in the Solano/Yuba County cases. Accordingly, the trial court did not err in finding that these were two separate prior prison terms within the meaning of section 667.5.

II.

Chain of Custody Argument Fails

Defendant claims there were some gaps in the chain of custody of some evidence relating to case No. CM022680. He does not prevail for two reasons. First, he makes no effort to summarize the evidence concerning chain of custody or explain how it was inadequate, or even to identify what evidence was affected. Accordingly, his treatment of the issue is inadequate to raise it on appeal.^[4] (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.)

Second, defendants no contest plea removed any such issue regarding the admissibility of evidence from consideration on appeal. A criminal defendants guilty plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt. (People v. Turner (1985) 171 Cal.App.3d 116, 125.) It waives trial, obviates the need for the prosecution to come forward with evidence, and concedes the prosecution possesses admissible evidence sufficient to prove guilt beyond a reasonable doubt. (Ibid.)

A guilty plea also waives any irregularity in the proceedings which would not preclude a conviction. [Citation.] Thus irregularities which could be cured, or which would not preclude subsequent proceedings to establish guilt, are waived and may not be asserted on appeal after a guilty plea. [Citation.] . . . In short, a guilty plea admits all matters essential to the conviction. [Citation.] (People v. Turner, supra, 171 Cal.App.3d at p. 126.) Procedural irregularities which might compel dismissal but which would not preclude the refiling of the same charges (id. at p. 127) also are waived by a guilty plea.

III.

Trial Counsel Was Not Ineffective

Defendant contends his trial counsel rendered ineffective assistance by failing to investigate or pursue the argument that defendant had served only two, rather than three, prior prison terms, and by failing to investigate or challenge the chain of custody evidence. Defendant also contends the prosecutor vindictively alleged additional prior prison terms for personal reasons.

Defendants first contention fails because, as explained above, defendant had served three separate prior prison terms within the meaning of section 667.5. (People v. Memro (1995) 11 Cal.4th 786, 834 [counsel is not ineffective for refusing to make meritless arguments].)

Defendants second contention fails because it is based largely on facts outside of the appellate record. (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) The record does not indicate what efforts defendants trial counsel undertook to determine if there were flaws in the chain of custody. Matters affecting the adequacy of counsels representation which are outside the record cannot be reviewed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Mosqueda (1970) 5 Cal.App.3d 540, 546.)

Moreover, in the context of a failure to investigate a claim, a defendant must demonstrate that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover. (People v. Williams (1988) 44 Cal.3d 883, 937; see also People v. Jackson (1980) 28 Cal.3d 264, 289, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Here, not only does the record fail to reflect what investigative efforts were made, it does not disclose the need for further investigation or the nature of the evidence counsel failed to discover. Thus, we have no basis for concluding counsel failed to investigate either the facts or the law in the manner required of a reasonably competent, diligent and conscientious advocate. (See People v. Jackson, supra, 28 Cal.3d at p. 288.)

Defendants claim that the prosecutor included charging allegations for personal reasons also concerns matters outside of the appellate record and is, therefore, not reviewable on appeal. (People v. Stafford (1973) 29 Cal.App.3d 940, 944, fn. 4.)

IV.

Imposition of Upper Term

Defendant contends the imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham).

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) For this purpose, the statutory maximum is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that under Blakely and other decisions, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the extent the law allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238(Black I) on this point, vacated in Black v. California (2007) U.S. ___ [167 L.Ed.2d 36].)

On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) The prior conviction exception include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Id. at p. 819.)

Here, in imposing the upper term, the trial court cited the following aggravating factors: defendant had sustained five prior felonies, three prior prison terms, and committed the current offense while he was on parole and on probation. The trial court expressly stated that, [a]ny one of those factors would be sufficient for the upper term sentence.

The factors relied upon by the trial court did not have to be submitted to a jury. Thus, the trial courts consideration of these aggravating factors in imposing the upper term did not run afoul of the Sixth Amendment to the United States Constitution.

V.

Drug Laboratory and Program Fees

Defendants appellate counsel sent the trial court a letter pursuant to People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel (2002) 103 Cal.App.4th 516, requesting a modification in the judgment to strike the discretionary drug program fee, since the trial court had previously found defendant had no ability to pay discretionary fines and fees. In response, the trial court prepared an amended abstract in April 2007, omitting both the mandatory criminal laboratory analysis fee (Health & Saf. Code,  11372.5) and the drug program fee (Health & Saf. Code,  11372.7), along with their corresponding penalty assessments. Striking the laboratory analysis fee, however, was error.

Pursuant to Health and Safety Code section 11372.7, the trial court may impose a drug program fee in an amount not to exceed $150 for each drug-related offense. The trial court must determine whether the defendant has the ability to pay the drug program fee. Thus, it was within the trial courts discretion not to impose the drug program fee after finding defendant was unable to pay it.

Conversely, Health and Safety Code section 11372.5 imposes a mandatory drug laboratory fee of $50. This laboratory analysis fee contains no requirement that a defendant have the ability to pay it. (People v. Staley (1992) 10 Cal.App.4th 782, 784-785.) The trial court must also impose mandatory fees and assessments when imposing the laboratory analysis fee. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)

We shall therefore order the trial court reinstate the $50 criminal drug laboratory analysis fee (Health & Saf. Code,  11372.5), plus a $10 surcharge ( 1465.7), a $50 state penalty assessment ( 1464), a $35 county penalty assessment (Gov. Code,  76000), and a $25 courthouse construction fee (Gov. Code,  70372).

VI.

Custody Credits

Although the trial court modified defendants custody credit calculation when it prepared the April 2007 amended abstract, the credit calculation remains incorrect. As the calculation is somewhat complicated, we break it down as follows:

In case No. CM022680, defendant is entitled to 50 actual days and 24 conduct days from his March 6, 2005 arrest to July 24, 2005, when he was released on probation.

Defendant is entitled to 14 actual days for the time he spent in the residential treatment program from September 22, 2005 to October 5, 2005. (Compare  2900.5, subd. (a), with  4019, subd. (a)(2); see also People v. Palazuelos (1986) 180 Cal.App.3d 962, 964-966; People v. Broad (1985) 165 Cal.App.3d 882, 884.)

In relation to a violation of probation, defendant is entitled to two more actual days for time he served on November 17, 2005 to November 18, 2005.

In case No. CM024364, defendant is entitled to 36 actual days and 18 conduct days from his January 9, 2006 arrest and bench warrant in case No. CM022680 to February 23, 2006, when he was sentenced to state prison.

Defendant is entitled to 113 days of credit from February 24, 2006 to June 16, 2006, for time served in prison custody from his original sentencing to the time he was resentenced. (See People v. Johnson (2004) 32 Cal.4th 260, 265-268.)

Thus, defendant is entitled to 102 days of actual local custody credit, 42 days of local conduct credit pursuant to section 4019, and 113 days of state prison credit for which prison authorities shall calculate any conduct or work credits, for a sum of 257 days of total custody credits. The abstract of judgment should indicate that defendants sentence was pronounced on June 16, 2006.

The trial court shall prepare an amended abstract of judgment accordingly.

In the interest of judicial economy and because the trial courts errors and the appellate remedies are clear, we modify the judgment without requesting supplemental briefing. (People v. Talibdeen, supra, 27 Cal.4th at pp. 1153-1157; People v. Smith (2001) 24 Cal.4th 849, 851-854; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1416.)

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to reinstate the mandatory $50 criminal drug laboratory analysis fee (Health & Saf. Code,  11372.5), $10 surcharge (Pen. Code,  1465.7), $50 state penalty assessment (Pen. Code,  1464), $35 county penalty assessment (Gov. Code,  76000), and $25 courthouse construction fee (Gov. Code,  70372). The judgment is further modified to award defendant 102 days of actual local custody credit, 42 days of local conduct credit pursuant to section 4019, and 113 days of state prison credit for which prison authorities shall calculate any conduct or work credits, for a sum of 257 days of total custody credits. The trial court is directed to prepare an amended abstract, indicating that defendant was sentenced on June 16, 2006, and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P.J.

MORRISON , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2]Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

^[3] Defendant was sentenced in Yuba County case No. C7453 on March 22, 1993. Defendants sentence in Solano County case No. C28374 was imposed on May 24, 1993, to run concurrently with his sentence in Yuba County case No. C7453.

^[4] While proceeding in pro per, defendant filed a section 995 motion to set aside the information based on flaws in the chain of custody. He argued that there must be flaws in the chain of evidence of the methamphetamine seized and tested in case No. CM022680 because he believed there were discrepancies in the weight of the methamphetamine tested and the storage locker numbers. The prosecutor explained some of the discrepancies and the trial court denied the motion, having previously noted there was a message to defense counsel explaining that one of the reports mistakenly stated 4.7 grams instead of .47 milligrams.