P. v. Ramirez

Filed 1/21/09 P. v. Ramirez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this, appellant's third appeal in this court, he raises two issues concerning the sentence imposed by the trial court.

First, he contends that his sentence was imposed based on a revised version of Penal Code section 1170, which was not the law when the offenses for which he was sentenced were committed, thus violating the constitutional prohibitions against ex post facto laws; and the California Supreme Court's authorization of the retroactive application of such law deprived him of due process of law.

Second, appellant argues, and the People concede, that the trial court incorrectly calculated the conduct credit portion of his presentence custody credits.

We disagree with appellant on his first contention, but agree with his second contention and accept the People's concession. Accordingly, we will order the trial court to amend the abstract of judgment to reflect the correct calculation of appellant's presentence conduct credits. In all other respects, we affirm the judgment.

Since this case is before this court for the fourth time, briefly, we summarize the history of this case.

On April 22, 2002, a jury convicted appellant Joseph Ramirez of two counts of lewd act on a child by force (Pen. Code, 288 subd. (b), counts one and two); sexual battery by unlawful restraint (Pen. Code, 242/243.4 subd. (a), count five); and sexual penetration by force (Pen. Code, 289, subd. (a)(1), count six). As to counts one, two and six, the jury found true an allegation that appellant committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim.[1]

Appellant appealed his conviction and his initial sentence of 45 years to life in state prison. In an unpublished opinion (H024606 filed January 6, 2004), we reversed appellant's conviction on count six, reduced the conviction on count five to a misdemeanor and remanded the case to the trial court for resentencing.

On April 8, 2004, the trial court resentenced appellant to a total term of 16 years in state prison on counts one and two, consisting of the upper term of eight years on count one and a full, consecutive term of eight years on count two. In addition, the court imposed a concurrent county jail term of six months on count five and a $200 restitution fine. The court granted custody credits of 449 days consisting of 391 actual days and 58 days of Penal Code section 4019 conduct credits.

Appellant filed a timely notice of appeal on April 28, 2004.

In his appeal after resentencing, appellant contended that the trial court's imposition of full, separate, and consecutive terms for counts one and two violated Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). In addition,

appellant contended that the trial court erred by failing to recalculate and update his custody credits to the date of resentencing. The Attorney General conceded that appellant was entitled to have his custody credits recalculated. We remanded to the trial court for recalculation of defendant's custody credits. In all other respects, we affirmed the judgment. Appellant petitioned the California Supreme Court for review. The California Supreme Court denied review on January 18, 2006.

Subsequently, the United States Supreme Court, having decided Cunningham v. California (2007) 549 U.S. 270 (127 S.Ct. 856) (Cunningham), granted appellant's petition for certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham. Upon reconsideration of the sentencing issue, we agreed that Cunningham required that appellant be resentenced. Accordingly, we remanded the case to the trial court for a new sentencing hearing.

On December 3, 2007, the trial court sentenced appellant for the third time. The court imposed a sentence of 16 years in state prison consisting of the aggravated term for both counts one and two to be run consecutively. On January 3, 2008, appellant filed a timely notice of appeal.

Facts[2]

Counts One and Two

During 2000 and part of 2001, 13-year-old Francis lived in San Jose with her older sister, her brothers and her aunt Jenny. In addition, Jenny's daughter Candy, a granddaughter Pamela, and appellant, lived in the house. The house had four bedrooms. Francis and her sister shared a room and slept in bunk beds. Appellant had the bedroom next to theirs.

Francis testified to an incident that occurred when she and her older sister were alone with appellant in the house. Her sister was in the bathroom cleaning her shoes when appellant called Francis into his bedroom and told her to lie on the bed. Appellant was already on the bed, lying on his right side. He was wearing his clothes. Francis lay on her right side in front of appellant. Appellant "scooted" her closer to him with his left hand, placed his right had over her mouth and told her not to say anything. Appellant's erect penis touched her "butt" through the outside of her clothes. The touching stopped when the doorbell rang and Francis got up to answer the door.

On another day, appellant called Francis into the bedroom again. This time, lying on his right side he used his left hand to put a blanket over her month, told her not to say anything, and then put his right arm over her waist and began pulling her closer to him. Francis felt appellant start to do the same things as he had done on the previous occasion. Then, he touched her "private parts" with his hand. Appellant's fingers touched Francis's back and stomach as he tried to go under the front of her pants.

Discussion

No Ex Post Facto or Due Process Violations

In sentencing appellant for the third time, the trial court noted that it had reviewed the probation report, appellant's statement in mitigation, a letter from a caseworker, the three appellate opinions in this matter, and the trial record. Further, the trial court noted that under People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), it was not required to make findings of fact, but must set forth reasons for selecting a particular term. Thereafter, the trial court proceeded to impose two eight-year aggravated terms. The trial court found that appellant had committed his crimes against more than one victim and that the crimes "were not . . . situational." Specifically, the trial court stated, "these crimes, that is Counts 1 and 2, were not crimes against an isolated victim or situational, because the defendant was also convicted in Count 5 of a sex crime against a different child." The trial court ran the two terms consecutively based on the fact that there were "two separate individual acts against the same victim."

Briefly, we recite a little of the history behind California's current determinate sentencing law. Following the United States Supreme Court's decision in Cunningham, supra, 549 U.S. 270, which held California's determinate sentencing law (DSL) unconstitutional insofar as it denied a defendant the right to a jury trial on aggravating factors relied upon to impose an upper term sentence of imprisonment, the California Legislature passed Senate Bill 40 (SB 40) (Stats.2007, ch. 3) as urgency legislation intended to bring the DSL into compliance with the requirements of Cunningham, supra, 549 U.S. 270.

On July 19, 2007, the California Supreme Court rendered its decision in Sandoval, supra, 41 Cal.4th 825. The Supreme Court stated that it was "arguable that the amendments to the DSL should be viewed as [changes in procedural law] and that they are, therefore, applicable to any sentencing proceedings conducted after the effective date of those amendments." (Id. at p. 845.) However, the Supreme Court declined to decide that question, and instead invoked its discretionary power to modify California's procedural sentencing laws to conform to the procedures implemented by the Legislature in SB 40. (Id. at pp. 845-846.)

As noted, appellant contends that his sentence was imposed based on a revised version of Penal Code section 1170,[3] which was not the law when the offenses for which he was sentenced were committed, thus violating the constitutional prohibitions against ex post facto laws; and the California Supreme Court's authorization of the retroactive application of such law deprived him of due process of law.

In Sandoval, supra, 41 Cal.4th 825, the Supreme Court addressed the judicial reformation of Penal Code section 1170 following a finding of Cunningham error on review. However, the Sandoval court did not specifically address whether the legislative amendments to the DSL violated the ex post facto clause if applied to offenses committed prior to its effective date. (Id. at pp. 853-857.) Nevertheless, the Sandoval court commented on whether its reformation procedure, which is identical to the provisions in the legislation, violated ex post facto principles. (Sandoval, supra, 41 Cal.4th at p. 853.) Sandoval concluded that the changes made by its reformation " 'create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment . . . and such conjectural effects are insufficient' " to establish there is an ex post facto effect to applying this new law. (Id. at p. 854.) In addition, the Sandoval court said that "the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to―and would not be expected to―have the effect of increasing the sentence for any particular crime." (Id. at p. 855.)

Appellant states that he recognizes that this court is bound to follow Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He argues, however, that the United States Supreme Court is not so encumbered. Accordingly, he submits a critique of Sandoval "in light of ex post facto and due process principles to facilitate future review of this important question of federal constitutional law."

The People agree with appellant that this court is bound by the Supreme Court's decision in Sandoval.

Nevertheless, we note that it is not at all clear to this court whether appellant was sentenced under the California Supreme Court's reformation of Penal Code section 1170 or the Legislature's reformation of the DSL. If appellant was sentenced under the Supreme Court's reformation, then we are bound to follow Sandoval and hold that application of the reformed statute to appellant's sentence satisfies due process requirements and does not result in an ex post facto violation accomplished by judicial decision. (Sandoval, supra, 41 Cal.4th at pp. 853-857.)[4]

On the other hand, if appellant was sentenced under the Legislature's reformation of the DSL, Sandoval's comments are dicta and do not control our decision. However, such comments carry persuasive weight and we choose to follow them because they demonstrate a thorough analysis of the issue and reflect compelling logic. (People v. Smith (2002) 95 Cal.App.4th 283, 300.)

The ex post facto clause prohibits legislation that makes the punishment for a crime more burdensome after its commission. (People v. McVickers (1992) 4 Cal.4th 81, 84, citing Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715].) "Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood, supra, 497 U.S. at p. 43.)

However, we reiterate what the Sandoval court pointed out, "the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstances is not intended to―and would not be expected to―have the effect of increasing the sentence for any particular crime." (Sandoval, supra, 41 Cal.4th at p. 855.)

Accordingly, we reject appellant's challenge to his upper term consecutive sentence.

Custody Credits

Appellant contends that the trial court improperly denied him pre-sentence conduct credits that accrued during three distinct periods of time. Appellant argues that the court should have calculated his conduct credits by aggregating the three time periods rather than calculating the conduct credits on each period separately. The People concede the issue. We accept the People's concession.

Initially we note that concurrent with the filing of appellant's brief, appellant submitted a letter to the trial judge pursuant to Penal Code section 1237.1 requesting correction of the abstract of judgment in accordance with appellant's contention that the calculation of his conduct credits was incorrect. To date we have not received notification that the trial court has corrected the abstract of judgment. The miscalculation of presentence custody credits results in an unauthorized sentence that may be corrected at any time. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-917; cf. People v. Scott (1994) 9 Cal.4th 331, 354.) Penal Code section 1237.1 provides that a request for correction of presentence custody credits should first be presented to the trial court. Appellant did so, but so far it appears that his request was not successful.

We point out that in order to fulfill the jurisdictional purposes of Penal Code section 1237.1 and to ensure an orderly process and protect the interests of defendants, the People must have notice of a defendant's request and, for appellate purposes, the trial court must have issued an order denying the request. Nevertheless, People v. Acosta (1996) 48 Cal.App.4th 411 held that section 1237.1 permits an appellate court to consider a credits issue joined with another issue. (Id. at p. 420.)

The court granted appellant 628 days credit for actual days spent in custody and awarded 92 days of conduct credits for a total of 720 days credit for time served. In calculating the actual time served in custody, the court noted that there were three distinct periods of time appellant spent incarcerated in the Santa Clara County jail prior to sentencing. These periods of time consisted of 391 actual days, 51 actual days and 186 actual days.

In determining appellant's conduct credits, the court performed a separate calculation for each of the three time periods, which yielded 92 days of conduct credits.

"[Penal Code] [s]ection 4019 governs the calculation of presentence custody credits. A convicted felon is eligible for a one-day credit for performing work and another one-day credit for complying with regulations for every six-day period during which he or she is confined in or committed to a county jail prior to sentencing. A minimum commitment of six days is required to earn good/work credits. If the six-day commitment minimum is met, for every four days spent in actual custody, a term of six days is deemed served." (People v. Culp (2002) 100 Cal.App.4th 1278, 1282-1283, fns. omitted.)

"The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits." (People v. Culp, supra, 100 Cal.App.4th at p. 1283.) "[A] defendant is entitled to have time spent in noncontinuous custody aggregated for the purpose of calculating good/work credits pursuant to [Penal Code] section 4019." (Ibid.) "In short, when it comes to calculating good/work credits pursuant to [Penal Code] section 4019, time is cumulative." (Id. at p. 1284, italics omitted.)

Although Penal Code section 2933.1, which operates as a cap on credits authorized under Penal Code section 4019 (People v. Cooper (2002) 27 Cal.4th 38, 40), applies in this case, to deny a defendant aggregation of distinct time periods spent in custody would "cut against the evident purpose of [Penal Code section 4019]: to encourage good behavior by prisoners through a reduction of the period of their incarceration." (People v. Dailey (1992) 8 Cal.App.4th 1182, 1184.)

Accordingly, we conclude that the court should have aggregated the three time periods that appellant spent in local custody and then applied the 15 percent limitation of Penal Code section 2933.1. Thus, appellant should have received credit for 628 actual days and 94 conduct days for a total of 722 days.[5]

The abstract of judgment in this case does not reflect the award of any custody credits. Accordingly, we will order the trial court to correct the abstract of judgment consistent with this opinion.

Disposition

The judgment is modified to reflect an award of 722 days credit for time served consisting of 628 actual days and 94 days of conduct credits. As so modified, the judgment is affirmed. The trial court is directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] We have taken judicial notice of the record in case number H024606.

[2] The facts are taken directly from this court's unpublished opinion in case number H027409, June 1, 2007.

[3] At the time appellant was sentenced for the third time, Penal Code section 1170, provided: "(a)(3) In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. . . . [] (b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . [] (c) the court shall state the reasons for its sentencing choice on the record at the time of sentencing . . . ." (Stats 2007 ch. 3 2, effective March 30, 2007.)

[4] The defendant in Sandoval had argued that resentencing her under a scheme in which the trial court had discretion to impose any of the three terms would deny her due process of law and violate the prohibitions against ex post facto laws. (Sandoval, supra, at p. 853.) The defendant had relied heavily on Miller v. Florida (1987) 482 U.S. 423 (107 S.Ct. 2446) (Miller) in which the United States Supreme Court held that a change to Florida's sentencing guidelines that raised the presumptive sentence range for the defendant's offense could not be applied to the defendant because his offense was committed prior to the effective date of the new guidelines. (Sandoval, at p. 853.) The Sandoval court rejected the defendant's reliance on Miller pointing out, "the prohibition on ex post facto laws applies only to statutory enactments, not to judicial decisions. By its terms, the ex post facto clause 'is a limitation upon the powers of the Legislature [citation] and does not of its own force apply to the Judicial Branch of government.' [Citation.] Although 'limitations on ex post facto judicial decisionmaking are inherent in the notion of due process,' the due process clause does not require the application of strict ex post facto principles in the context of judicial decisionmaking. [Citation.] Rather, judicial decisions are reviewed under 'core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.' [Citation.]" (Sandoval, supra, at p. 855.)

[5] This calculation can be summarized as follows: 628 divided by 100 x 15= 94.2. The 94.2 is rounded down to 94.