P. v. Gisbert
Filed 4/9/12 P. v. Gisbert CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RENE GISBERT,
Defendant and Appellant.
G045619
(Super. Ct. No. 10HF2131)
O P I N I O N
Appeal from a
postjudgment order of the Superior Court
of
County, Andre Manssourian, Judge. Affirmed.
Frank Ospino, Interim
Public Defender, Mark Brown, Assistant Public Defender, and Matthew Missakian,
Deputy Public Defender, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Alana Cohen Butler,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
Introduction
The
trial court awarded defendant Rene Gisbert 88 days of presentence custody
credits, after defendant pled guilty to second
degree vehicle burglary. The court
later granted the prosecution’s motion to vacate the credits, and defendant
appeals from that postjudgment order.
The
trial court had jurisdiction to entertain the prosecution’s motion because an
unauthorized sentence may be corrected at any time. Defendant was not entitled to any presentence
custody credits because he would not have been free of custody but for his
incarceration while awaiting trial on the second degree vehicle burglary
charge, as he was already committed to state prison in connection with an
earlier burglary conviction. The award
of presentence custody credits where
credits were impermissible made the first sentence unauthorized. We therefore affirm the postjudgment order.
Statement of Facts and Procedural History
On
September 9, 2010, defendant
pled guilty to a felony count of second degree burglary (Pen. Code,
§§ 459, 460, subd. (b)), and was sentenced to two years in state
prison. (All further statutory
references are to the Penal Code.)
On December
1, 2010, the Orange
County District Attorney filed a new felony complaint against defendant,
charging him with a separate felony count of second degree vehicle
burglary. The date of the alleged crime
in the second case was June 10, 2010. On March 4,
2011, defendant’s notice
and demand for trial, pursuant to section 1381,
office from the court.
Defendant
appeared for arraignment in the second case on April 19, 2011, at which time he pled guilty. Defendant was sentenced on the same day; at
that time, the trial court stated it did not believe defendant was entitled to
any presentence custody credits, a position with which the prosecutor
agreed. Defendant’s counsel argued that
defendant should receive 44 days of actual custody credits, plus 44 days of
good conduct credits, representing the time between the notice and demand for
trial and defendant’s sentencing. The
court sentenced defendant to 16 months in state prison, to be served concurrently
with the two-year sentence on the first case, and awarded him a total of 88
days of presentence custody credits, over the prosecutor’s objection.
On
May 6, 2011, the prosecution
filed a motion to vacate presentence credits.
After a hearing, the court concluded the award of presentence custody
credits was incorrect, and granted the motion to vacate the credits. An amended abstract of judgment reflecting
zero days of presentence custody credits was prepared and filed. Defendant timely appealed.
Discussion
A
trial court generally loses jurisdiction “to resentence a criminal defendant
once execution of the sentence has commenced.”
(People v. Karaman (1992) 4
Cal.4th 335, 344.) The Attorney
General argues, however, that the failure to award the legally mandated amount
of presentence custody credits was an unauthorized sentence that could be
corrected whenever it was discovered. (
628, 647; People v. Acosta (1996) 48
Cal.App.4th 411, 428, fn. 8.) A sentence is unauthorized “where it could
not lawfully be imposed under any circumstance in the particular case [such as]
. . . where the court violates mandatory provisions governing the
length of confinement.” (
354.)
Defendant
argues the sentence was not unauthorized, and therefore not subject to
correction at any time, because the trial court had the discretion to award
presentence custody credits in this case.
Defendant relies on section 2900.5, subdivision (b), which provides
that presentence custody 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.” Defendant argues that the reference to
consecutive sentences in the second sentence of section 2900.5, subdivision
(b), “implies that if concurrent sentences are imposed, then credit for a
single period of custody may be applied to multiple cases being served
concurrently.”
The
Attorney General counters that the second sentence of section 2900.5,
subdivision (b) “simply means that when a defendant is convicted of multiple
offenses he is only entitled to one accrual of credits on all the charges and
not credits on individual counts.” Case
law supports the Attorney General’s interpretation of the statute. In People
v. Bruner (1995) 9 Cal.4th 1178, 1192, footnote 9, the California Supreme
Court noted that “there 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.”
A
defendant is not entitled to presentence custody credits when he is charged
with a crime while already incarcerated and serving a sentence on a separate,
earlier crime. (People v. Bruner, supra,
9 Cal.4th at p. 1180; In re Joyner
(1989) 48 Cal.3d 487, 489; In re
Rojas (1979) 23 Cal.3d 152, 155.)
The test is whether the defendant would have been free “but for” his or
her incarceration on the second crime.
“[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.” (People
v. Bruner, supra, at
pp. 1180‑1181.)
We conclude the trial court did not have
discretion to award presentence custody credits for the period after defendant
filed his section 1381 notice and demand for trial, because he would not have
been free from custody but for being held for trial on the
credits was an unauthorized sentence, which the trial court had jurisdiction to
correct at any time. There was no error
in the trial court’s order granting the motion to vacate the credits.
Disposition
The
postjudgment order is affirmed.
FYBEL,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
ARONSON, J.
the time the person is serving a sentence in any state prison or county jail of
this state . . . it is hereby made mandatory upon the
district attorney of the county in which the charge is filed to bring it to
trial within 90 days after the person shall have delivered to said district
attorney written notice of the place of his or her imprisonment or commitment
and his or her desire to be brought to trial upon the charge . . . .” (§ 1381.)
