P. v. Myers

Filed 11/26/07 P. v. Myers CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Remanded with instructions.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

On March 16, 2005, defendant and appellant Anthony Andre de Myers (defendant) pleaded no contest to one count of grand theft of personal property (Pen. Code, 487)[1]and admitted one prior strike conviction ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The trial court sentenced defendant to two years, doubled to four years as a second strike. Defendant was given 597 days of presentence custody credit, consisting of 399 days of actual custody and 198 days of conduct credit.

In an unpublished opinion dated September 7, 2006, this court affirmed defendants conviction. The record, however, was insufficient for this court to determine the date from which defendants custody credit should be calculated. Accordingly, we remanded to the trial court with instructions to review the appropriate documentation concerning the date from which defendants custody credit should be calculated, to again determine, as necessary, defendants custody credit, and to state the basis for the courts determination. (People v. de Myers (Sept. 7, 2006, B184092) [p. 7] [nonpub. opn.].) On remand, the trial court reduced defendants custody credit to 492 days, consisting of 328 days of actual custody and 164 days of conduct credit.

Defendant now appeals from the trial courts reduction of his conduct credit. We conclude that the trial court failed to follow this courts instruction to review the appropriate documentation concerning the date from which defendants custody credit should be calculated, to again determine, as necessary, defendants custody credit, and to state the basis for the courts determination. Accordingly, we must again remand for the trial court to determine the date from which defendants custody credit should be calculated.

BACKGROUND

A. Defendants Prior Appeal

In September 2002, defendant stole a $50 money order and $800 in cash from Griselda Madrid by impersonating a real estate business man and promising to help Ms. Madrid find housing. Defendant subsequently pleaded no contest to one count of grand theft of personal property and admitted one prior strike conviction. Defendant obtained a certificate of probable cause and appealed his conviction. We appointed counsel to represent defendant on appeal. Appellate counsel failed to identify any arguable issues, and asked this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).

Our review of the record found no basis for the award of 597 days of custody credit. We requested the parties to submit supplemental briefing as to whether the trial court correctly calculated the amount of defendants custody credit. Appellate counsel for defendant submitted a letter brief conceding that the trial court had erred, and that defendant was entitled to only 493 days of custody credit. The calculation of 493 days was based on the assumption that May 13, 2004 was the date defendants custody began. That assumption was derived from a statement by defendants trial counsel during the sentencing hearing that defendant will get credit from May 13, 2004. No other basis for choosing May 13, 2004 appeared in the record.

Defendants appellate counsel, however, subsequently withdrew that concession. In a second letter brief, defendant argued that the original award of 597 days of credit was correct because a material term of defendants plea agreement required that defendant receive custody credit from March 4, 2004, not May 13, 2004. Defendant explained that, in February 2004, he had been in federal custody. On February 23, 2004, defendant demanded that he be brought to trial in this case, pursuant to section 1381.5. Defendants demand was acknowledged by the Los Angeles County District Attorneys Office in a letter dated March 4, 2004. As part of defendants plea bargain, the prosecutor had agreed that defendant would receive custody credit calculated from March 4, 2004. To support this contention, defendant moved to augment the record on appeal with four documents: (1) a letter from an attorney at the Los Angeles County Public Defenders Office supporting defendants position; (2) a copy of defendants demand for trial pursuant to section 1381.5; (3) a letter dated March 4, 2004 from the Los Angeles County District Attorneys Office acknowledging defendants demand for trial; and (4) a page of handwritten notes, purported to be the contemporaneous notes of defendants trial counsel, stating in pertinent part, 4-6-05 S/W Paul [the prosecutor]ok credit from 3-4-04[defendant] sentenced.

In resolving defendants first appeal, this court did not rule on defendants motion to augment. We concluded that the record on appeal did not indicate how the trial court calculated defendants custody credit, so that we could not determine whether the calculation was correct. We stated that, on remand, the trial court may consider the documents defendant submitted on his motion to augment and any other documents necessary or appropriate to determine the date from which defendants custody credit should be calculated. In the disposition, we instructed the trial court to review the appropriate documentation concerning the date from which defendants custody credit should be calculated, to again determine, as necessary, defendants custody credit, and to state the basis for the courts determination.

B. The Hearing on Remand

Defendant was not present at the hearing on remand. He was represented by appointed counsel who, apparently, was unfamiliar with defendants case. The hearing on remand, in its entirety, occurred as follows:

THE COURT: This is LA042786, People versus Anthony DeMyers. Hes in state prison. [] The Court of Appeal has issued a remittitur asking the court to recalculate his time credits. [] Ms. Merritt for the People. Mr. Hahm for the defense. [] The best I can come up with was, it said that he was remanded by this court in Department 100 on May 18th, 2004.

[DEFENSE COUNSEL]: Well, the bailiff called, and they confirmed that his actual arrest date was May 14th.

THE COURT: That would make sense. That would be four days before that. So May 14th, 2004. Then he was sentenced on

[DEFENSE COUNSEL]: April 6th, 2005. [] I have 328 plus 164. But, your Honor, just one side note. I called upstairs to try to get our file. However, it seems to have been checked out to my colleague, Sherri Lira. I dont know if we received prior notice, and this was assigned to her. Im just trying to locate her right now.

THE COURT: How many days did you say?

[DEFENSE COUNSEL]: 328, plus 164, for a total of 492.

THE COURT: Total of 492. Right.

[DEFENSE COUNSEL]: Thats correct.

THE COURT: Do you want to be heard on this?

[PROSECUTOR]: Its involving math, your Honor. I feel its best for the People to submit.

THE COURT: Okay. Thats one day less than I originally gave him. [] Okay. 328 actual, plus 164 good time/work time, for a total of 492. [] Well make an amended abstract to reflect those numbers.

Defendant timely appealed.

DISCUSSION

We appointed counsel to represent defendant on this appeal. After examining the record, appointed counsel filed an opening brief requesting this court to review the record independently in accordance with Wende, supra, 25 Cal.3d 436. On July 26, 2007, we gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant did not respond.

Based on our independent examination of the entire record, we requested supplemental briefing from the parties. In his supplemental brief, defendant argues that the trial court failed to follow this courts instruction to review the appropriate documentation concerning the date from which defendants custody credit should be calculated, to again determine, as necessary, defendants custody credit, and to state the basis for the courts determination. We agree.

Where a reviewing court reverses a judgment with directions . . . the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. (Rice v. Schmid (1944) 25 Cal.2d 259, 263 [153 P.2d 313 . . .].) (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367.) When an appellate courts reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void. (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.)

When we remanded this matter, we instructed the trial court to review the appropriate documentation concerning the date from which defendants custody credit should be calculated . . . . Our use of the term appropriate documentation must be viewed in the context of the law governing the calculation and award of custody credit. When a criminal defendant who has been in custody is convicted and sentenced, the defendant is entitled to have all days of custody . . . credited upon his or her term of imprisonment . . . . ( 2900.5, subd. (a).) However, credit shall be given only where the custody to be credited is attributable to the proceedings related to the same conduct for which the defendant has been convicted. ( 2900.5, subd. (b).) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. ( 2900.5, subd. (d).) Penal Code section 2900.5 imposes on the sentencing court the obligation to determine the number of days of custody and, in those cases to which it expressly applies, conduct credit to which the defendant is entitled . . . . (People v. Sage (1980) 26 Cal.3d 498, 508-509.)

At the time the trial court calculated defendants custody credit on December 6, 2006, California Rule of Court, rule 4.310[2]provided in relevant part, Upon referral of the defendant to the probation officer for an investigation and report under section 1203(b) or 1203(g), or upon setting a date for sentencing in the absence of a referral, the court shall direct the sheriff, probation officer, or other appropriate person to report to the court and notify the defendant or defense counsel and prosecuting attorney within a reasonable time prior to the date set for sentencing as to the number of days that defendant has been in custody and for which he or she may be entitled to credit. Any challenges to the report shall be heard at the time of sentencing. Accordingly, the trial court . . . has the capability of determining the facts from which the [custody] credit may be computed. If the court does not have enough facts at the time of sentencing, its duty is to direct the sheriff, probation officer or other appropriate person to produce the information. At the time sentence is pronounced, the defendant and his attorney will be present and will have seen what is in the reports submitted to the court on this subject. (People v. Montalvo (1982) 128 Cal.App.3d 57, 62, italics added [quoting former Rule 252, now Rule 4.310]; see also People v. Wischemann (1979) 94 Cal.App.3d 162, 175 [remand to trial court required when record does not contain competent evidence of the duration of defendants incarceration].)

The term appropriate documentation in our instruction to the trial court thus refers to a report from the sheriff, a probation officer, or other appropriate person as required by Rule 4.310, or similarly competent, credible evidence. The trial court failed to rely on such evidence to calculate defendants custody credit. The trial court selected May 14, 2004 as the proper date from which to calculate defendants custody credit based upon a second-hand report by defense counsel of a telephone conversation between the trial courts bailiff and an unspecified third party. The report by defense counsel was multiple hearsay, and was not a competent or reliable basis upon which to calculate defendants custody credit. Although the trial courts minute order states that the trial court reviewed the court file and the transcript of the plea hearing, the trial court indicated during the hearing that those sources were inadequate to determine the date defendants custody began. The trial court received no information regarding whether defendant was already in custody prior to May 14, 2004, as defendant contended on his prior appeal, or whether defendant is entitled to receive credit for any prior custody in this case.

Further, it is clear from the hearing transcript that neither defense counsel nor the prosecutor were notified a reasonable time prior to the [hearing] as to the number of days that defendant has been in custody and for which he or she may be entitled to credit. (Rule 4.310.) Defendant was thus deprived of a meaningful opportunity to challenge the trial courts factual determination that May 14, 2004 was the proper date, particularly in light of defendants contention that his plea agreement required that he receive custody credit from March 4, 2004. (See Rule 4.310 [Any challenges to the report shall be heard at the time of sentencing]; In re Williams (2000) 83 Cal.App.4th 936, 942 [when reduction in custody credit would materially change plea bargain, fundamental due process entitled petitioner to an opportunity to be heard before he could be deprived of the [custody] credit].) For these reasons, the award of custody credit cannot stand. We must remand again to permit the trial court to make a finding of fact regarding the date defendants custody commenced and to calculate defendants custody credit, based on appropriate evidence.

Defendant also argues that his attorney on remand rendered ineffective assistance. Because we reverse and remand for a new hearing on other grounds, we need not resolve that issue. We trust that when this matter is heard again in the trial court, defense counsel will be prepared and will advocate effectively defendants factual and legal contentions to the trial court. The Sixth Amendment guarantees defendant nothing less.

DISPOSITION

We remand to the trial court to recalculate defendants custody credit. Prior to holding a hearing on this matter, the trial court shall direct the sheriff, probation officer, or other appropriate person to report to the trial court, and to notify the defendant or defense counsel and the prosecuting attorney within a reasonable time prior to the hearing, as to the number of days that defendant has been in custody and for which he or she may be entitled to credit, as set forth in Rule 4.310 and the body of this opinion. If defendant chooses to do so, defendant shall be permitted to present evidence to support his contention that the terms of his plea agreement specified March 4, 2004 as the date from which his custody credit is to be calculated and to be present at the hearing. The prosecuting attorney shall have the right to submit evidence and be present at the hearing. The trial court shall make appropriate findings of fact and shall state on the record the reasons for its determination of defendants custody credit. Upon recalculation of defendants custody credit, the clerk of the superior court is to prepare, if necessary, an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1]All statutory references are to the Penal Code.

[2] Rule 4.310 was amended effective January 1, 2007, but not in any material respect. All rule references are to the California Rules of Court.