P. v. Rosano
Filed 5/2/08 P. v. Rosano 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
----
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MARIO ROSANO, Defendant and Appellant. | C054223 (Super. Ct. No. 05-7274) |
Defendant Joseph Mario Rosano pleaded no contest to evading a peace officer, a felony (Veh. Code, 2800.2, subd. (a)--count 3), and carrying a concealed weapon, a misdemeanor (Pen. Code, 12025, subds. (a)(3), (b)(7)--count 7),[1]in exchange for a stipulated term of eight months (one-third the middle term) in state prison for count 3, to run consecutively to his sentence in two unrelated cases out of Solano County, and dismissal of the remaining counts.[2]
The trial court sentenced defendant to eight months in prison for evading a peace officer, to run consecutively to his sentence in the Solano County cases, and a concurrent six months in jail for carrying a concealed weapon. The court awarded defendant 48 days of presentence custody credit (32 actual days and 16 good conduct) against his sentence for carrying a concealed weapon; it awarded him no credit against his sentence for evading a peace officer.
Defendants sole contention on appeal is that the trial court erred in failing to award him 48 days of presentence custody credit against his sentence for evading a peace officer. The People respond that defendant knowingly and intelligently waived credits on [that] count as part of the plea bargain. Finding no waiver, we shall modify the judgment to apply 48 days of presentence custody credit to defendants sentence for evading a peace officer.
Discussion[3]
Defendant claims that since the trial court ordered that his six-month jail sentence for carrying a concealed weapon run concurrently with his eight-month prison sentence for evading a peace officer, he is entitled to presentence custody credits against the term imposed for each crime. We agree.
Section 2900.5 provides in pertinent part: (a) In all felony and misdemeanor convictions, . . . when the defendant has been in custody, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . . [] (b) . . . Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed. However, where an accused person is held in custody on a number of charges and upon conviction he is ordered to serve concurrent sentences, the time to be credited pursuant to section 2900.5 must be credited to each of them. (People v. Schuler (1977) 76 Cal.App.3d 324, 330 (Schuler); see also People v. Adrian (1987) 191 Cal.App.3d 868, 875-876 (Adrian).)
In supplemental letter briefs, the parties appear to agree that (1) defendant was in custody in Yolo County for 32 days in the underlying case; (2) he was not awarded credit in the Solano County cases for the 32 days he spent in custody in Yolo County; and (3) he is entitled to the credits on the misdemeanor count.[4]
Since the trial court ordered that defendants six-month jail sentence for carrying a concealed weapon be served concurrently with his eight-month prison sentence for evading a peace officer, he is entitled to have the 48 days of presentence custody credit applied to both sentences unless he waived his right to such credits. (Schuler, supra, 76 Cal.App.3d at p. 330; Adrian, supra, 191 Cal.App.3d at pp. 875-876.) Because the parties agree that defendant did not receive credit for this time in the Solano County cases, there is no dual credit issue. ( 2900.5, subd. (b); Bruner, supra, 9 Cal.4th at p. 1191.)
We reject the Peoples assertion that defendant waived his right to have the presentence custody credits applied to his sentence for evading a peace officer. A waiver of presentence custody credits must be knowing and intelligent. (People v. Arnold (2004) 33 Cal.4th 294, 308.) The gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled[.] (Ibid.)
Here, the trial court indicated that it was prepared to sentence [defendant] to . . . eight months, one-third the middle-base term, [for evading a peace officer,] with credits agreed upon of 32 actual, 16 days of conduct, grand total of 48. The People responded that they thought [t]he credits . . . were going to go on the misdemeanor. We discussed that in chambers. Thats why we were calculating those. The following colloquy ensued:
THE COURT: Was that the conversation?
[THE PEOPLE:] Thats what we discussed in chambers.
THE COURT: [Defense counsel].
[DEFENSE COUNSEL]: Thats fine.
THE COURT: The credits will be given to the misdemeanor, which will be a six-month concurrent term with the eight months.
It does not appear from the record that defendant was told that he was entitled to have the presentence custody credits applied to his sentence for evading a peace officer, or that he agreed to waive them. Defense counsels agreement that the presentence custody credits were going to go on the misdemeanor does not amount to a knowing and intelligent waiver on the part of defendant. Nor does defendants failure to object to the trial courts application of those credits constitute a knowing and intelligent waiver of his right to have the presentence custody credits applied to his sentence for evading a peace officer, as the People seem to suggest. Moreover, while the issue may have been discussed in more detail in chambers, as suggested by the colloquy, that discussion is not part of the record on appeal. On this record, we find defendant did not knowingly and intelligently waive his right to have presentence custody credits applied to his sentence for evading a peace officer.
Disposition
The judgment is modified to apply 48 days of presentence custody credit (32 actual days and 16 good conduct days) to defendants sentence for evading a peace officer. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification, and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
DAVIS , J.
We concur:
SCOTLAND, P.J.
BLEASE , J.
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[1] Hereafter, undesignated section references are to the Penal Code.
[2] The parties initially agreed that defendant would receive an eight-month prison sentence on each count, mistakenly believing that defendant was charged with felony carrying a concealed weapon. When the mistake was discovered, the parties agreed that the plea that was entered will remain and that defendant would be sentenced to a total of eight months in prison on count 3, to run consecutively to his sentence in the Solano County cases. There was apparently no agreement as to defendants sentence for carrying a concealed weapon.
[3] The facts of the underlying offenses are not relevant to the issue raised in this appeal.
[4] We directed the parties to submit supplemental letter briefs addressing the following issue: Whether the trial court erred in awarding defendant any presentence custody credit against his misdemeanor sentence in this case. In doing so, the parties shall address whether, in light of the prison term he received in Solano County, the conduct which led to defendants convictions in this case was the sole reason for his loss of liberty during the presentence custody period. (People v. Bruner (1995) 9 Cal.4th 1178, 1191 [(Bruner)].) In addition to a supplemental letter brief, defendant filed a request for judicial notice, requesting that we take judicial notice of the computation of custody credits for Solano County case numbers FCR231343 and FCR229298, prepared by the Solano County Probation Department and filed on September 25, 2006 pursuant to Evidence Code section 452, subdivision (d), which provides that judicial notice may be taken of the records of any court of this state. According to defendant, this document shows that he was not awarded credit in the Solano County cases for the 32 days he spent in custody in Yolo County. As defendants appellate counsel acknowledges in her declaration, this document was obtained from defendants trial counsel. While appellate counsel requested that the clerk of the Solano County Court certify a copy of the document and transmit it to this court, we have received no such document. Moreover, the document submitted by defendant is not file-stamped, nor is it signed by the trial judge. Because it is not clear whether the document is part of the record in the Solano County cases, defendants request for judicial notice is denied. The request is also denied as moot insofar as the People do not dispute that defendant was not awarded credit in the Solano County cases for the 32 days he spent in custody in Yolo County.
