P. v. Waters

Filed 12/30/08 P. v. Waters CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Kenneth Lavern Waters appeals from a final judgment following his no contest plea, placement on probation, subsequent revocation of probation and imposition of a sentence of two years in state prison. Defendants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), asking us to independently review the record in order to determine whether it reveals any arguable issues. Also, defendant has filed a supplemental letter brief raising various claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 2004, the District Attorney for Mendocino County filed a criminal complaint against defendant alleging in count one that on or about May 13, 2004, defendant possessed marijuana for sale (Health and Safety Code section 11359[1]) and in count two that defendant grew marijuana (section 11358). These charges arose after a California Fish and Game Warden investigated an oil spill on a property in Mendocino County and discovered the leak was coming from a generator used to power an indoor marijuana operation in a large barn structure. Mendocino County Sheriffs officers subsequently served a search warrant on the property and were advised by the property owner that he leased the property to defendant, a Lake County resident. Defendant met with officers the next day and explained he was from the Kelseyville Medical Marijuana source, a caregiver club, and was growing the marijuana for up to 50 patients in Lake County. On March 30, 2005, defendant filed a Mower[2] motion seeking to assert a defense to the charges based upon his status as a primary care giver under the Compassionate Use Act.[3] After a hearing on April 6, 2005, the trial court denied the Mower motion.

On September 8, 2005, the parties reached a negotiated disposition. Under the terms of the disposition, defendant agreed to enter a plea of no contest to a felony violation of section 11366 (maintaining a place for the production of marijuana) and to be placed on formal felony probation for a period of three years with terms and conditions including a promise of credit for time served. The trial court accepted defendants no contest plea after concluding defendant entered the plea voluntarily with a knowing and intelligent waiver of constitutional rights. During the plea colloquy, defendant said he understood that the maximum sentence for the charge he was pleading to is three years in state prison with up to three years on parole thereafter. Defendant also acknowledged no threats or promises were made to him in exchange for his plea except those recited in open court. The parties stipulated that the preliminary hearing transcript provided a factual basis for the plea. After defendant entered his plea, the prosecution dismissed counts one and two. On November 15, 2005, the trial court suspended imposition of sentence and placed defendant on formal probation for a period of 36 months.

The trial courts order of probation was filed on December 5, 2005. Defendant did not appeal the order of probation.

On January 6, 2006, the Mendocino County probation department filed a petition alleging defendant violated his probation by testing positive for marijuana on December 24, 2005, attempting to transport more than 28.5 grams of marijuana and missing a mandatory office appointment on January 5, 2006. On February 8, 2006, the trial court found the latter two allegations true by a preponderance of the evidence. The trial court revoked and reinstated defendants probation on the condition that defendant serve 30 days in jail. The trial court also ordered that defendant is not allowed to possess or use any type of marijuana without an approved medical marijuana 215 card issued by Mendocino County or an approved agency.

On February 9, 2006, officers from the Lake County Narcotics Task Force conducted a probation search at defendants residence during which they recovered approximately four pounds of marijuana, a single round of ammunition and various weapons, including a billy club found next to defendants bed, a three-bladed throwing knife, and nunchakus, a weapon used in martial arts. Defendant was arrested at the scene by the Lake County police. Based on this incident, the Mendocino County probation department filed a second petition on February 17, 2006, alleging defendant violated probation by possessing marijuana for sale, possessing a dangerous weapon and possession of ammunition.

A probation violation hearing was held on the second petition on March 28, 2006, during which defendant denied the allegations. At the evidentiary hearing, defendant testified he was attempting to comply with the trial courts order of February 8 requiring him to dispose of any marijuana remaining in his possession when the Lake County officers arrived on the morning of February 9. Defendant stated the knife was part of his collection that hed stored temporarily in a duffle bag in his bedroom. Regarding his alleged possession of the nunchaku, defendant testified that he makes nunchakus for sale to licensed dojos. Defendant denied having knowledge of the round of ammunition found in his residence. Defendants son Jeffrey and his girlfriend, Tina, also testified at the hearing. Jeffrey and Tina each testified that they resided with defendant. Tina stated she found the round in a pocket of Jeffreys pants while she was doing the laundry the day before the search and put it on the shelf used to store movies.

The court set a further hearing for April 5, 2006, to rule on the evidence submitted regarding the allegations of the second petition. At the April 5th hearing, the court found by a preponderance of the evidence that defendant violated his probation by possessing a billy club and nunchakus in violation of Penal Code section 12020. A sentencing hearing on the probation violation was held on May 19, 2006. The probation officer recommended that probation should be permanently revoked and defendant sentenced to a term of three years in state prison. The trial court, however, ordered defendants probation revoked and reinstated and sentenced defendant to 180 days in the Mendocino County Jail with a surrender date of June 16, 2006. In addition, the court ordered defendant not to possess any type of dangerous weapon, including knives, nunchakus or other such instruments. Defendant completed his jail sentence on October 13, 2006.

On December 21, 2007, the Mendocino County probation department filed a third petition alleging defendant violated his probation because on December 15, 2007, he was arrested by the Lake County Sheriffs Department on charges of first and second degree burglary, acquiring an access card without consent, and fraudulent use of an access card. The petition alleged a further violation that defendant appeared for an office visit on December 5, 2007, with a knife sheath in his back pocket and when questioned stated he has a knife collection at his home. On January 3, 2008, the trial court revoked probation, noted defendant was currently in custody in Lake County, and issued a no bail bench warrant. On May 2, 2008, the trial court continued the matter to May 14, 2008 for a hearing on the violation.

At the hearing on May 14, 2008, defendant agreed to a proposed disposition whereby he would admit to the misdemeanor conviction for a violation of Welfare and Institution Code section 10980(g), he suffered in Lake County, as alleged in the first paragraph of the third petition. In return for his admission, the prosecution would dismiss the second allegation regarding his knife collection as alleged in the third petition. Defendant agreed to give up his right to have a probation violation hearing and admitted he suffered the misdemeanor conviction in Lake County. After a sentencing hearing on June 2, 2008, the trial court terminated defendants probation and sentenced him to the midterm of two years on the underlying offense of conviction (maintaining a place for the production of marijuana in violation of section 11366). With respect to credits for time served, the trial court stated theres 183 actual days, 45 days of 4019.^[[4]] So that is a total of 228 days credited. The abstract of judgment filed on June 2, 2008 reflected the trial courts oral pronouncement of sentence, including a total of 228 days in custody.

After sentencing, defendant submitted a request for modification of sentence dated June 4, 2008, in which he listed seven issues, including inaccurate calculation of credit for time served. In an order filed on June 30, 2008, the trial court stated that [m]any of the reasons listed by [defendant] for the modification are matters which might be more appropriately raised in an appeal or writ of habeas corpus. However, the court agreed to calendar the matter for recomputation of credits. At the subsequent hearing on July 14, 2008, several mistakes in the computation of defendants credits for time served came to light. The probation officer stated defendant was correct in his assertion that he was released from custody in Lake County and transferred to custody in Mendocino County on the probation violation on April 30, not May 1, so he should have received an additional day of actual credit for a total of 184 actual days credit. Additionally, the probation officer acknowledged that based on 184 days actual credit, defendant should receive 92 days instead of 45 days pursuant to section 4019 for a total credit of 276 days.

However, with respect to defendants contention that he was entitled to actual credit for the period of time he was in custody based on the Lake County charge, the probation officer stated: [Defendants] issue with the Lake County is, he was . . . on bail in the Lake County case. A petition was issued here on the twenty-first. He bailed out there on the twenty-second on that case. Lake County Sheriffs went out and arrested him on the 27th of January. They revoked his bail and they held him while he was going through the jury trial process in Lake County. So, he wants all of the time that he was there, from January 27 until April 30th. In response, the trial court stated, But he cant get double credits and he was there awaiting the Lake County case. Accordingly, the trial court directed the clerk of court to file an amended abstract of judgment showing 184 days of actual credit, plus 92 days of section 4019 credit for a total of 276 days credit.

Defendant filed a timely notice of appeal on July 16, 2008. The amended abstract of judgment was filed on July 30, 2008. The amended abstract listed 184 days of actual credit, 92 days of section 4019 credit, but showed a total credit of only 228 days. On October 14, 2008, defendants counsel wrote to the Mendocino County Superior Court (with a copy to this court) pointing out that the abstract of judgment filed on July 30, 2008, contained a mathematical error because it showed total credits of 228 days instead of 276 days. Subsequently, the Superior Court issued another amended abstract of judgment on November 3, 2008, showing the correct total for credits of 276 days.[5]

DISCUSSION

As previously noted, Appellants counsel filed with this court a Wende Brief, requesting that this court independently review the entire record on appeal in this case for error. Subsequently on November 18, 2008, Appellant filed a letter brief in this court setting forth a narrative history of the case from his perspective and asserting several bases upon which his conviction and sentence should be overturned. We have reviewed Appellants claims of error and find that none of them are persuasive. Accordingly, for the reasons set forth more fully below, we reject his assertions of error and affirm.

Several of defendants claims relate to his plea of no contest to a felony violation of section 11366. Defendant asserts his no contest plea to the charge of a violation of section 11366 was made under duress because his wife was gravely ill and required constant care. Defendant also asserts that his no contest plea was entered under duress because his attorney warned him that despite defendants caregiver defense the prosecutor was determined to pursue a conviction to avoid possible civil action for the removal of plants and grow equipment. Furthermore, defendant continues, his counsel told him that she didnt have the ammo for an effective defense, defendant would likely lose if he took the case to trial, and if he did not plead guilty he would lose his home, end up separated from his family and unable to take care of his wife.

We are unable to reach the merits of defendants claim of duress because it amounts to a direct attack on the validity of the plea. Pursuant to Penal Code section 1237.5, a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such appeal. [Citation.] (People v. Shelton (2006) 37 Cal.4th 759, 766;  1237.5, subd. (b); see also People v. Buttram (2003) 30 Cal.4th 773, 790 [the purpose of section 1237.5 is to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted].) However, [e]xempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. (People v. Cuevas (2008) 44 Cal.4th 374, 379; see also Cal. Rules of Court, rule 8.304(b)(4)(B).) But issues going to the validity of a plea require compliance with section 1237.5. (Citation.) Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature (citation) or that the plea was entered at a time when the defendant was mentally incompetent (citation). (People v. Panizzon (1996) 13 Cal.4th 68, 76.)

In this case, defendant failed to obtain a certificate of probable cause regarding his assertion that his no contest plea is invalid because it was entered under duress. Accordingly, the claim is dismissed. (See People v. Rushing (2008) 168 Cal.App.4th 354, 362 [dismissing constitutional claims for lack of certificate of probable cause].) Defendants claim that the trial court erred when it ignored the absence of physical evidence at the [preliminary examination] and Mower hearing and in its finding that Sergeant Noe was an expert on matters relating to marijuana production must also be dismissed because defendant failed to obtain a certificate of probable cause with respect to this claim.

Next, defendant claims that at the probation violation hearing on May 14, 2008, the trial court judge conferred in chambers with defense counsel and the district attorney while defendant remained in the courtroom with the bailiff. According to defendant, after the conference in chambers defense counsel advised him that if he admitted the violation of probation then the trial court would impose the low term of 16 months. On this basis, defendant asserts that two years was not the agreement.

The record reflects that the disposition agreed to at the hearing on May 14, 2008 was that defendant would admit to the misdemeanor conviction he suffered in Lake County subsequent to his arrest there on December 15, 2007, and in return the second allegation regarding his knife collection would be dismissed. The record further reflects that defendant agreed to give up his right to have a probation violation hearing and admitted he suffered the misdemeanor conviction in Lake County. Significantly, the record establishes that no promises were made regarding the issue of sentencing at the May 14, 2008, proceeding. Contrary to defendants assertion, at the subsequent sentencing hearing on June 2, 2008, the probation officer and the prosecutor urged the court to impose the aggravated term of three years, whereas defense counsel asked for the low term of 16 months. The trial court imposed the mid-term of two years on the grounds that although circumstances in aggravation outnumbered those in mitigation, the underlying offense involved kind of a borderline medical marijuana situation, and therefore the midterm is more appropriate. Our review of the record reveals no irregularity in the sentencing procedure employed by the court. Moreover, because defendants claim relies upon evidence which is outside the record, it cannot be considered in this appeal. (People v. Jones (2003) 30 Cal.4th 1084, 1105.) Thus, we find that defendant has failed to raise an arguable claim of sentencing error on this ground.

Defendant also claims various errors were made by the trial court in its computation of credits. For example, the probation report shows five periods of custody totaling 183 days. Defendant asserts the period of custody shown in the probation report erroneously reflects that he was in custody from May 1, 2008 to June 2, 2008; however he was actually in custody from April 30, 2008 to the date of his transportation to state prison on June 5, 2008. Defendant is partially correct. As noted above, the trial court recognized the error it made in its custody credit computation at the July 14, 2008 hearing and accordingly adjusted defendants actual credit from 183 to 184 days with 92 days 4019 credit. However, the trial court is only responsible for the calculation of custody credits prior to sentencing. (Penal Code,  2900.5, subd. (d)). The calculation of any credits subsequent to the imposition of defendants sentence is the responsibility of the Department of Corrections. (People v. Smith (1989) 211 Cal.App.3d 523, 527 [sentencing court awards credits for all days in custody up to and including the day of sentencing ( 2900.5, subd. (a)) and the Department of Corrections [] award[s] credits from the day after sentencing to the day before delivery to the department ([Penal Code]  2900.5, subd. (e)) and all days thereafter ( 2900)].) Therefore, the trial court correctly calculated defendants custody credit by awarding him credit up to and including June 2, 2008.

Defendant also asserts that the period of custody reflected in the probation report commencing on June 17, 2006 through October 13, 2006 for a total of 119 days credit should actually reflect an initial custody date of June 16, 2006 and 120 days credit. Defendant blames this error on poor records at the Mendocino County jail because whereas jail records show he was booked on June 17, 2006 he had been in a holding tank since 2:00 p.m. on 6-16-06. The poor records defendant refers to are not part of the record on appeal. Thus, defendants claim cannot be considered in this appeal because it refers to evidence which is outside the record. (People v. Jones, supra, 30 Cal.4th at p. 1105.)

Defendants last assertion of error regarding the trial courts computation of his custody credits relates to his request for custody credits pertaining to the period he was incarcerated in Lake County for burglary and several theft and unauthorized access charges. Defendant contends that he was arrested in Lake County on January 27, 2008, on a no bail warrant issued by the Mendocino County Superior Court on January 3, 2008, after the court summarily revoked his probation based on the Lake County charges. At the time of his arrest on the Mendocino warrant, defendant had posted bail and was not in custody on the Lake County charges. However, upon his arrest on the Mendocino warrant, defendants bail on the Lake County complaint was revoked by the Lake County Superior Court. Thereafter, defendant remained in custody on the Lake County charges until that matter was finally adjudicated on April 30, 2008. On that date defendant received a sentence of 60 days, which, with credit for good behavior pursuant to Penal Code section 4019, was reduced to 40 days. Defendant contends that the trial court erred in failing to award him presentence credit for the time he remained in custody in Lake County from January 27, 2008 to April 30, 2008. We disagree.

Penal Code section 2900.5, subdivision (b), (hereafter section 2900.5) provides that credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. The California Supreme Court has acknowledged that it is not always a straightforward matter to determine a defendants entitlement to presentence credits under section 2900.5 where multiple proceedings are in play. (People v. Bruner (1995) 9 Cal.4th 1178, 1194 (Bruner).) Accordingly, in order  to provide for section 2900.5 a construction which is faithful to its language, which produces fair and reasonable results in a majority of cases, and which can be readily understood and applied by trial courts (citation) (id. at p. 1195), the Bruner court developed the following rule of strict causation for cases where the same conduct is implicated in multiple proceedings: [W]e hold that . . . where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a but for cause of the earlier restraint. (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Under Bruners rule of strict causation: [a] prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. (Bruner, supra, 9 Cal.4th at p.1191.) (People v. Callahan (2006) 144 Cal.App.4th 678, 685 [denying presentence credits to defendant housed at state hospital for treatment pursuant to an insanity commitment while awaiting trial on a new charge].) Bruners strict causation rule precludes presentence credits for the time defendant spent in custody in Lake County because defendants loss of liberty in Lake County is not attributable to proceedings related to the same conduct for which he was convicted in Mendocino County. To the contrary, defendants incarceration in Lake County is attributable to his arrest for various charges in that county, including burglary in the first and second degree, acquiring an access card without consent and unauthorized use of food stamps and he was awarded presentence credit for the period from January 27, 2008 to April 30, 2008, in that matter. (Bruner, supra, 9 Cal.4th at p. 1194; see also People v. Purvis (1992) 11 Cal.App.4th 1193, 1196, cited approvingly in Bruner, supra, 9 Cal. 4th at p. 1191 [denying custody credits where defendant spent approximately eight months in confinement before sentencing where his initial arrest for parole violations was based only in part on conduct underlying his present conviction for forgery and auto theft].) Accordingly we find no error with respect to the trial courts denial of defendants request for custody credits related to his incarceration in Lake County.

In sum, we have conducted an independent review of the record and find no arguable issues therein.

DISPOSITION

The judgment and sentence is affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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[1] Further statutory references are to the Health and Safety Code unless otherwise noted.

[2]People v. Mower (2002) 28 Cal.4th 457, a case recognizing the medical use of marijuana as an affirmative defense to some marijuana-related charges.

[3] The Compassionate Use Act of 1996 (Act; Health & Saf. Code,  11362.5, added by voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996)) provides partial immunity for the possession and cultivation of marijuana to two groups of people: qualified medical marijuana patients and their primary caregivers. (People v. Mentch (2008) 45 Cal.4th 274, 277, 2008 Cal.Lexis 13630 (Mentch).) In Mentch, the California Supreme Court ruled that a defendant claiming partial immunity for the possession and cultivation of marijuana as a primary caregiver under the Compassionate Use Act must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana. (Mentch, supra, 45 Cal.4th at p. 283.)

^[[4]] Penal Code, section 4019 (hereafter section 4019).

[5] The amended abstract was filed in this court on November 6, 2008.