Filed 7/26/12 P. v. Mejia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
VICTORIANO MEJIA,
Defendant and
Appellant.
F063236
(Super.
Ct. No. VCF005473-99)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Patrick O'Hara, Judge.
Richard A.
Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Appellant, Victoriano Mejia, stands
convicted of multiple felonies. In
January 2010, the trial court imposed sentence and awarded
held, inter alia, that the trial court erred in determining appellant’s actual
time credits and remanded the matter to the trial court with directions to
recalculate those credits.
name="_ftnref3" title="">[2] Thereafter, the trial court issued an ex
parte order and abstract of judgment indicating, inter alia, that appellant was
awarded custody credits of 4,905 days, consisting of 4,681
days of actual time credits and 224 days of conduct credits. The instant appeal followed.
On appeal, appellant contends (1)
the court erred in modifying appellant’s sentence without a notice and hearing
and in appellant’s absence, and (2) the abstract of judgment contains other
errors that should be corrected. The
People concede the latter point. We
assume without deciding that appellant’s first argument has merit, but conclude
any error was harmless. We conclude
further that the court’s award of custody credits was erroneous. We modify the judgment, order that the trial
court issue a new abstract of judgment, and affirm the judgment as
modified.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, a jury convicted appellant
of multiple felonies, including five counts of forcible rape (§ 261, subd.
(a)(2)), and found true a number of enhancement allegations. On November 16, 1999, the court imposed
sentence. On appellant’s first appeal,
in 2002, this court modified the judgment by striking one of the enhancements.
In 2006, the United States District
Court for the Eastern District of California
granted appellant’s petition for a writ of habeas corpus on the five
forcible rape counts. After the People
expressed their intention to retry the case, in 2009, appellant pled guilty to
the rape counts. On January 12, 2010,
the court imposed a prison term, which erroneously included a three-year term
for the previously stricken enhancement, and awarded custody credits of 662
days based on the court’s conclusion that appellant was entitled to 448 days of
actual time credits and 224 days of conduct credits.
time credits,” and that the Department of Corrections and Rehabilitation (DCR)
would calculate “[a]ny additional time credits.” It appears the court awarded actual time
credits only through December 2, 1999; the report of the probation officer
prepared in advance of the January 2010 sentencing (RPO) indicates appellant
had served 448 days in local custody from his earliest day in custody,
September 11, 1998, through December 2, 1999, and that his state prison
incarceration began on December 3, 1999.
Appellant appealed from the January
2010 judgment, and in April 2011, this court, in People v. Mejia, case No. F059546 (second appeal), held that the
trial court erred in (1) imposing sentence on the previously stricken
enhancement and (2) in failing to award appellant credits for
in state prison, i.e., from
September 11, 1998, when he was initially taken into custody, through the date
of resentencing, January 12, 2010. (See
20, 23, 37 [when felony sentence modified on appellate remand during term of imprisonment, trial court
must calculate and credits defendant with all actual days spent in custody,
whether in jail or prison, up to time of resentencing].) This court ordered: “The case is remanded to the trial court for the limited purposes
of (1) striking [the previously stricken] enhancement] ...; and (2)
recalculating the number of actual days appellant has been in custody up to the
date of resentencing on this remand ....”
On July 8, 2011, after the remittitur was issued, the trial
court set a hearing for July 21, 2011, “which requires the appearance of
Counsel and defendant.” However, on July
11, 2011, the court issued an ex parte minute order striking the enhancement as
directed and “order[ing] that defendant receive credits for 4681 actual days
[in custody] served up through July 11, 2011.”
That same day an abstract of judgment was filed that showed 448 days of
actual time credits and 224 days of conduct credits. A new abstract was filed on July 14, 2011,
showing total presentence custody credits of 4,905 days, consisting of 4,681
days of actual time credits and 224 days of conduct credits. On September 19, 2011, the court issued an ex
parte minute order vacating the July 21, 2011 hearing date.
DISCUSSION
Due Process and
Claims
As indicated above, appellant
contends his right to due process of law under the United States and California
Constitutions was violated because the trial court, on remand, modified his
sentence without providing notice and a hearing at which appellant was
present. Representative of the
authorities upon which appellant relies in support of these claims are
McGahuey (1981) 121 Cal.App.3d 524 (McGahuey).
In Williams, a habeas corpus
proceeding, the petitioner pled guilty to escape (§ 4530, subd. (c))
pursuant to a plea agreement, which included a provision for presentence
credits. (Williams, supra, 83
Cal.App.4th at p. 938.) The court
imposed the agreed upon sentence and awarded presentence credits. (Id.
at p. 940.) Some 11 months later, the
DCR sent a letter to the trial court advising that the petitioner was not
entitled to presentence credits, based on the “premise” that the petitioner
“was not entitled to presentence credits pursuant to section 2900.5 if he was
serving a prison term for another offense at the time he was sentenced in the
present matter.” (Id. at pp. 940, 942.)
Shortly thereafter, the trial court entered an order modifying its
sentencing minute order, “pursuant to the ‘request’ of the [DCR],” striking the
award of presentence credits. (
sentence in accordance with the department’s suggestion, the matter should have
been returned for a hearing with petitioner present. Striking the presentence credits materially
changes the plea bargain and thus involves a liberty interest. [Citation.]
Therefore, fundamental due process entitled petitioner to an opportunity
to be heard before he could be deprived of the presentence credits he received
when sentenced ....” (
In McGahuey, the trial court imposed sentence of four and one-third
years consecutive to a life term for the defendant’s multiple felony
convictions. (McGahuey, supra, 121
Cal.App.3d at p. 527.) Thereafter, the
DCR sent a letter to the trial court requesting that appellant’s sentence be
modified so as to make one of the determinate counts, for which a subordinate
term had been imposed, the basis for the principal term. (Id.
at pp. 527-528.) The Attorney General
joined in the request and the court “filed an amended judgment-commitment and
an amended abstract of judgment-commitment,” indicating that appellant’s
sentence consisted of the determinate term of 10 and one-half years consecutive
to the life sentence. (
attempted modification of ... [the defendant’s] sentence” was error. (Id.
at p. 530.) “To be effective, a sentence
must be pronounced orally on the record and in defendant’s presence. [Citations.]
Any later attempt to modify the sentence in writing is invalid. [Citation.]
The only exception is where the error sought to be corrected is a
clerical one [citation]; pronouncement of sentence is, however, a judicial
act. [Citations.]” (Ibid.)
The People do not dispute that generally, as the court
stated in People v. Wilen (2008) 165
Cal.App.4th 270, “A defendant has a right to be present at critical stages of a
criminal prosecution, a right protected by both the federal constitution and
the state constitution. [Citations.] California has also guaranteed the right by
statute: ‘In all cases in which a felony
is charged, the accused shall be present at the arraignment, at the time of
plea, during the preliminary hearing, during those portions of the trial when
evidence is taken before the trier of fact, and at the time of imposition of sentence. The accused shall be personally present at
all other proceedings unless he or she shall, with leave of court, execute in
open court, a written waiver of his or her right to be personally
present....’ (Pen. Code, § 977, subd.
(b)(1); [citation].)” (
exception articulated in McGahuey,
argue that the court’s task on remand—recalculating the number of actual days
appellant had been in custody up through the date of resentencing—“appears to
be a matter of simple arithmetic” and “basically clerical in nature,” and
therefore the court did not err, on due process grounds or on any other basis,
in dispensing with notice, a hearing and appellant’s presence. Appellant counters that the determination of
custody credits is a judicial determination, not a clerical one, and that
therefore his due process rights were violated.
We need not resolve this dispute. We assume for the sake of argument that (1)
the court erred in modifying appellant’s award of
notice and a hearing at which appellant was present, and (2) that such error is
of constitutional dimension under both state and federal law. State law error, including state
constitutional error is reviewable under the standard set forth in
836, which provides that error is not prejudicial unless the defendant
demonstrates a reasonable probability that he would have obtained a more
favorable result in the absence of the error.
(People v. Hurtado (2002) 28
Cal.4th 1179, 1190 [Watson standard
applies to all error under state law].)
Federal constitutional error is generally reviewable under the more
stringent test announced in Chapman v.
California (1967) 386 U.S. 18, 24.
Under Chapman, federal
constitutional error requires reversal, unless the prosecution demonstrates the
error was harmless beyond a reasonable doubt.
(Ibid.) “[W]hile there are some errors to which
exception and not the rule.” (
578.) Here, if appellant’s claims that
he was denied a noticed hearing with him present amount to claims of federal
due process error, the Chapman
standard applies. (Cf.
295 [failure to hold constitutionally mandated parole prerevocation hearing
reviewed under Chapman
standard].) As we explain below, under
the unique facts of this case, even under the more stringent
because the court awarded appellant more
custody credits than he was entitled to.
The record, beginning with the January 2010 RPO,
indicates—and there is nothing in the record to indicate otherwise—that
appellant was initially taken into custody on September 11, 1998, at which time
he was incarcerated in Owyhee County in Idaho, and that he remained in custody
continuously, either there, in Tulare County Jail, or in state prison, through
July 11, 2011, the date as of which the court, on remand, recalculated
appellant’s actual time credits. That
time period—September 11, 1998, through July 11, 2011—encompasses 4,687 days,
not 4,681, as determined by the court.
Thus, admittedly, the court awarded appellant fewer days of actual time credits than he was entitled to.
However, the court awarded appellant more days of presentence conduct credits than he was entitled to,
resulting in an award of total custody credits that was too high. The abstract of judgment issued by the court
on July 11, 2011, showed an award of 224 days of presentence conduct
credits. Apparently, the court based its
calculation of presentence custody credits on the earlier determination that appellant
had spent 448 days in presentence custody.
In fact, as indicated ante in
footnote 4, appellant had been incarcerated for 432 days up to and including
the date of his original sentencing on November 16, 1999, and under section
4019, appellant’s presentence custody credits should have been 216 days, not
the 224 days determined by the court.
Thus, although the latest abstract of judgment shows appellant was
awarded 4,905 total custody credits (4,681 days of actual time credits plus 224
days of presentence conduct credits) he was actually entitled to only 4,903
days of total credits (4,687 days of actual time credits plus 216 days of
presentence custody credits).
Appellant suggests the error in failing to hold a noticed
hearing with him present cannot be considered harmless because “[h]e might have
relevant information that his attorney did not have or that was not in the
official jail records” that he could have presented at a hearing. Specifically, appellant makes reference to
the following information in this court’s opinion in appellant’s 2002
appeal: In March 1990 a police detective
investigating appellant’s offenses received information that appellant was in
Oregon. The detective contacted
authorities in Oregon and told them of appellant’s “possible location,” but
“Authorities in Oregon were unable to locate appellant there.”
Appellant speculates that appellant might have been in custody in Oregon
for some period of time not reflected in the record.
However, as indicated above, the January 2010 RPO indicates
appellant was not taken into custody until September 11, 1998, in Idaho, more
than eight years after he might have been seen in Oregon. Appellant did not challenge the dates of
custody in his last appeal, nor does he do so now. He offers only speculation. There is nothing in the record that even
remotely suggests that the dates of custody set forth in the RPO are incorrect,
or that appellant, who has been serving a prison sentence since 1999, was not
continuously incarcerated from the date he was taken into custody in 1998
through July 11, 2011. On this record,
we can say beyond a reasonable doubt that, as indicated above, appellant is
entitled to 4,903 days of total custody credits up to and including July 11,
2011, not 4,905 days as determined by the court and set forth in its ex parte
order and the latest abstract of judgment.
Therefore, the errors appellant complains of cannot be considered
prejudicial.
The question remains as to the proper disposition, given
that the court’s judgment, as set forth in the July 2011 ex parte order and the
most recent abstract of judgment, are incorrect as to appellant’s custody
credits. An incorrect award of custody
credits is an unauthorized sentence that we may correct on appeal. (People
v. Taylor (2004) 119 Cal.App.4th 628, 647, [sentence failing “to award
legally mandated custody credits is unauthorized and may be corrected whenever
discovered”]; People v. Guillen
(1994) 25 Cal.App.4th 756, 764 [“correction should be made even if it results
in less credits (and hence a longer term in custody) for the defendant”].) The following is clear from the record: Appellant was taken into custody on September
11, 1998, and remained in custody continuously through the date of the court’s
order, July 11, 2011. That period
consists of 4,687 days. For the portion
of this period that constitutes presentence custody, he is entitled to 232 days
of conduct credits. (§ 4019.) We will modify the judgment accordingly, and
direct the trial court to issue a new abstract of judgment indicating this
modification.
Other Corrections
to Abstract of Judgment
Appellant contends, and the People
concede, that the July 14, 2011 abstract of judgment contains two errors: First, although the initial post-remand
abstract of judgment, filed July 11, 2011, contained a third page showing four
of appellant’s convictions not shown on the first page, the July 14, 2011
abstract did not contain this additional information. Second, the July 14, 2011 abstract indicates
that an enhancement was imposed under section 12022.3, subdivision (a) in
connection with appellant’s count 6 conviction of kidnapping. In fact, the court imposed a two-year
enhancement under former section 12022.5, subdivision (a) in connection with
count 6. We will direct the trial court to
correct these errors in the new abstract of judgment.
DISPOSITION
The judgment is modified as
follows: As of July 11, 2011, appellant
is awarded 4,687 days of actual time credits and 216 days of custody
credits. As modified the judgment is
affirmed. The trial court is directed to
issue a new abstract of judgment indicating this modification and, in addition,
the following: (1) In connection with
appellant’s count 6 kidnapping conviction, the imposition of a two-year enhancement
under former Penal Code section 12022.5, subdivision (a), and (2) all
convictions suffered by appellant in the instant case, as indicated on the
first and third pages of the abstract
of judgment filed July 11, 2011.
Appellant need not be present. The
trial court is directed to forward a certified copy of the new abstract of
judgment to the Director of the Department
of Corrections and Rehabilitation.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Kane, J., and Poochigian, J.
name="_ftn2" title="">[1] We
use the term “custody credits” to denote, collectively, actual time credits
(Pen. Code, § 2900.5) and conduct credits (Pen. Code, § 4019). Except as otherwise indicated, all further
statutory references are to the Penal Code.
