P. v. Rowman
Filed 6/3/13 P. v. Rowman 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opinion has not been certified for publication or ordered published for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.
RICHARD DANIEL ROWMAN,
Defendant and Appellant.
G046916
(Super. Ct. No. 10HF0005)
O P I N I O N
Appeal from a
postjudgment order of the Superior Court
of
County, Derek Guy Johnson, Judge. Reversed.
Richard Daniel Rowman,
in pro. per.; and Patrick Morgan Ford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, and Ifeolu E. Hassan, Deputy Attorney General, for Plaintiff
and Respondent.
*
* *
Defendant
Richard Daniel Rowman pleaded guilty to one count of
sentenced to a total of 12 years in state prison.
We
appointed counsel to represent
defendant on appeal. Appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and
v. California (1967) 386 U.S.
738 (Anders), setting forth the facts of the case, raising no issues, and
requesting that we independently review the entire record.
On
October 29, 2012, this
court provided defendant with 30 days to file written argument on his own
behalf. Defendant requested additional
time to file written argument; this court granted defendant’s requests, and
ultimately provided defendant until February 26,
2013, to file a supplemental brief.
Defendant did not file a supplemental brief identifying any issues for
our review.
In
response to this court’s order for supplemental briefing on the limited issue
of defendant’s presentence custody credits,
defendant, his appointed counsel, and the Attorney General all filed
supplemental letter briefs. We conclude
defendant is entitled to additional presentence custody credits, and we direct
the trial court to amend the judgment to award defendant a total of
31 days of presentence custody credit, and to prepare an amended abstract
of judgment reflecting defendant’s correct credits.
We
have examined the entire record and counsel’s Wende/Anders brief, and
find no other arguable issue. (
Background
Defendant’s
plea agreement included the following:
“I offer the following facts as the basis for my guilty plea: [¶] In Orange County, California, on 12/1/09
I unlawfully entered a[n] inhabited dwelling without consent and with the
intent to commit[] larceny inside.â€
Defendant was charged with one count of first degree residential
burglary. (Pen. Code, §§ 459, 460,
subd. (a).) The amended felony
complaint alleged defendant had suffered two prior serious and violent felony
convictions (id., §§ 667,
subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)); had
served five prior prison terms (id.,
§ 667.5, subd. (b)); and had been convicted of two prior serious
felonies (id., § 667,
subd. (a)(1)).
On
June 21, 2010, defendant pleaded guilty to first degree residential
burglary as charged, and admitted the prior serious felony convictions and
prison terms. Defendant was sentenced
the same day. As part of the plea
agreement, the prosecution agreed to move to strike the serious and violent
felony prior conviction allegations, and further agreed to strike the prior
prison terms for the purpose of sentencing.
The trial court sentenced defendant, consistent with the plea agreement,
to a total of 12 years in prison: two
years for residential burglary, plus two five-year terms as sentencing
enhancements for the prior serious felony convictions. Defendant’s probation in a separate
misdemeanor case was revoked and terminated.
The
court awarded defendant a total of 20 days of presentence custody credit,
consisting of 14 actual days’ credit and six days of good conduct credit. The court also ordered defendant to pay
restitution in an amount to be determined; a $200 restitution fine; a $200
parole revocation restitution fine (to be suspended unless defendant’s parole
was revoked); a $30 court security fee; and a $30 criminal conviction
assessment fee. The court further
ordered defendant to submit to DNA testing.
In
December 2011, defendant, in propria persona, filed a motion to correct the
abstract of judgment to award him the correct number of presentence custody
credits. Defendant claimed he was
entitled to 144 days of actual custody credit, plus 144 days of good conduct
credit, for a total award of 288 days of presentence custody credit. The trial court denied the motion, and
defendant appealed.
Analysis of Potential Issues
Defendant,
in propria persona, filed a motion to correct the abstract of judgment,
claiming he was entitled to an award of more presentence custody credits. The appellate record does not make clear on
what date defendant was taken into custody in connection with the present
offense. Defendant filed a supplemental
appellate brief, in propria persona, in which he explains he was arrested in
December 2009 for a parole violation in connection with a separate conviction,
and sentenced to 12 months in prison.
Defendant claims he was transferred to Orange County jail on or about
June 1, 2010 in connection with this case.
Defendant was never released from custody before he was sentenced in the
present case.
The
Attorney General agrees that the appellate record is ambiguous regarding the
date on which defendant was taken into custody in connection with this case, as
opposed to his previous parole violation.
The Attorney General further agrees that defendant was in actual custody
in connection with the present offense for between 12 and 29 days. The Attorney General does not dispute
defendant’s representation that he was transferred to Orange County jail on or
about June 1, 2010.
A defendant is not entitled to presentence
charged with a crime while already incarcerated and serving a sentence on a
separate, earlier crime. (People v. Bruner (1995) 9 Cal.4th 1178, 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.) Because defendant would not have been free
from custody during his presentence period in this case (until he was
transferred to Orange County jail), as he was imprisoned in connection with his
earlier parole violation, defendant was not entitled to any additional
presentence custody credits based on his December 2009 arrest.
However,
a fair reading of the appellate record, combined with the representations of
defendant and the Attorney General in their respective supplemental letter
briefs, convinces us that defendant is entitled to more than the 20 days of
presentence custody credit originally awarded.
Therefore, we reverse the trial court’s postjudgment order denying
defendant’s motion to correct the abstract of judgment, and direct the trial
court to award defendant 21 days of actual custody credit (from June 1 through
June 21), plus 10 days of good conduct credit, for a total of 31 days of
presentence custody credit. (
Cal.App.3d 1571, 1573 [two-for-one credits calculated by granting two days
for each completed four-day block of actual custody].) Because defendant was sentenced for a serious
felony, and had prior convictions for serious felonies, he was not entitled to
one-for-one good conduct credits. (Pen.
Code, former § 4019, subds. (b) & (c), amended by Stats. 2009, 3d
Ex. Sess. 2009‑2010, ch. 28, § 50.)
Our
review of the record pursuant to Wende,
supra, 25 Cal.3d 436 and
appellate issue regarding the postjudgment order. Competent counsel has represented defendant
in this appeal.
Defendant
completed a plea form that described the constitutional rights he was waiving
by entering his guilty plea; the trial court reviewed those rights with
defendant, and found defendant knowingly, intelligently, and voluntarily waived
those rights. The court found there was
a factual basis for the plea. The trial
court’s sentence was consistent with the plea
agreement. The fees and fines
imposed by the trial court were proper.
Disposition
The
postjudgment order denying defendant’s motion to correct the abstract of
judgment is reversed. We direct the
trial court to amend the judgment to award defendant a total of 31 days of
presentence custody credit. We further
direct the trial court to prepare an amended abstract of judgment, and forward
a certified copy of the amended abstract of judgment to the
Division of Adult Operations.
FYBEL,
ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
