P. v.
Filed 10/23/12 P. v. Cary CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ADAM PAUL CARY,
Defendant
and Appellant.
E052979
(Super.Ct.No.
RIF109870)
OPINION
APPEAL
from the Superior Court
of
County. James T.
Warren, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.
Cynthia
M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a
Adam Paul Cary pled guilty to assault with intent to commit rape (Pen. Code, §
220),
serious and violent felony conviction (§§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1)). In return, defendant was
sentenced to a total term of eight years in state prison with credit for time
served. Defendant’s sole contention on
appeal is that he should have been awarded 209 days of additional conduct
credit for the time he spent in a state hospital after doctors found him
competent to stand trial. The Attorney
General agrees. We also agree and will
modify the judgment.
PROCEDURAL
BACKGROUND
On
April 28, 2003, defendant was arrested and charged with attempted rape
(§§ 664, 261, subd. (a)(2), count 1) and assault with intent to commit
rape (§ 220, count 2). Defendant
thereafter remained in custody for a period of seven years while he was
transferred back and forth between county jail and state hospitals due to
competency issues.
Defendant
was initially found mentally incompetent to
January 27, 2004, and ordered to be placed at Patton State Hospital
(Patton). Defendant was admitted to
Patton on February 4, 2004. On September
1, 2004, Patton recommended that defendant return to court because he was
competent to stand trial.
Defendant
was returned to county jail to stand trial on October 1, 2004. The preliminary hearing was held on March 25,
2005. Following that hearing, an
information was filed charging defendant with assault with intent to commit
rape. (§ 220.) The information also alleged that defendant
had suffered a prior serious felony conviction (§ 667, subd. (a)) and a
prior serious and violent felony strike conviction (§§ 667, subds. (c), (e)(1),
1170.12, subd. (c)(1)).
On
July 27, 2005, defendant was again found mentally incompetent to stand
trial. On August 17, 2005, the court
again ordered defendant placed at Patton.
Defendant was eventually admitted on October 27, 2005, and released to
county jail on February 2, 2006.
However, on April 13, 2006, the court again ordered defendant to return
to Patton for further treatment.
Defendant was eventually admitted on December 14, 2006.
On
August 20, 2008, Patton sent a letter and a certification of mental competence
to the court recommending that defendant be returned to court to stand trial
because his mental competency had been restored. Defendant was returned to jail on October 3,
2008.
On
November 21, 2008, the court declared a doubt as to defendant’s competency and
appointed doctors to examine defendant.
On July 29, 2009, the court authorized defendant’s transportation to and
placement at Sylmar Rehabilitation Clinic.
Defendant was eventually moved to an inpatient facility in Riverside and
then later to Napa State Hospital.
On
December 16, 2010, a court-appointed psychiatrist sent a report to the court
stating defendant was competent to stand trial.
Following a hearing on January 6, 2011, the court found defendant
mentally competent to stand trial pursuant to section 1368. Defendant was not returned to county jail
until January 11, 2011.
On
January 11, 2011, pursuant to a plea agreement, defendant pled guilty to
committing assault with intent to commit rape (§ 220) and admitted that he had
suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd.
(c)(1)). In return, the remaining enhancement
allegation was dismissed, and defendant was immediately sentenced to a total
term of eight years with credit of eight years for time served. At the time of sentencing, the parties
stipulated that defendant had accrued eight years of presentence custody
credit, and the court found “eight years credit, leaving a net balance of
zero.†The court did not separately
calculate defendant’s presentence custody credit.
On
October 26, 2011, defendant filed a motion to correct his presentence custody
credit, claiming that he was entitled to 2,817 days of actual credit and 208
days of conduct credit. On November 15,
2011, the probation department sent the court a memorandum regarding
defendant’s presentence custody credit.
The memorandum noted that defendant was entitled to 2,816 days of actual
credit for his time spent in county jail (1,296 days) and state hospitals
(1,520 days), and 194 days of conduct credit pursuant to section 2933.1.
A
hearing on the motion was held on November 30, 2011. Following the hearing, the court awarded
defendant a total of 3,020 days of presentence custody credit as follows: 1,296 for actual days served in county jail,
plus 1,520 for actual days served in a state mental health facility, plus 204
days of conduct credit under section 2933.1.
At the time, the trial court also noted, “And that’s by stipulation of
all parties; right?†The prosecutor
responded, “I would be submitting on what probation said with the correction
made by Judge Warren with regards to the 4019 time.†Defense counsel did not respond.
DISCUSSION
Defendant
contends, and the People concede, that he is entitled to five additional days
of conduct credit pursuant to section 2933.1 for the time he spent in state
hospitals after doctors found him competent to stand trial but before he was
returned to county jail. He further
argues that to the extent his counsel stipulated to the award of custody
credit, it should not constitute invited error.
He also asserts that even if the error was invited, he received
ineffective assistance of counsel.
name="_ftnref3" title="">[3]
Individuals
detained prior to felony sentencing may earn conduct credit for time spent in
penal institutions. (§ 4019.) Although a defendant is not entitled to
conduct credit for the time spent receiving treatment in a mental hospital (
570-571), a defendant is entitled to conduct credit from the date hospital
staff determines he is competent to stand trial and he continues to be housed
at the facility awaiting return to jail.
(People v. Bryant (2009) 174
Cal.App.4th 175, 184.) The parties agree
that the trial court erred when it failed to award defendant conduct credit for
that time.
Initially,
the entire time that defendant spent in custody between April 28, 2003, and
January 11, 2011, is 2,816 actual days.
Defendant spent 1,520 days in state hospitals receiving treatment, and
he was not entitled to conduct credit for that time.
conduct credit for 1,296 days. The days
defendant was attested to be competent but awaiting return to county jail are
uncontradicted: 30 days (9/1 –
9/30/04); 44 days (8/20 – 10/2/08); and 27 days (12/16/10 – 1/11/11).
The
trial court awarded defendant 1,296 for actual days served in jail, 1,520 days
for time served in state hospitals, and 204 days of conduct credit pursuant to
section 2933.1. Section 2933.1 limits
the amount of conduct credit to 15 percent for violent offenses. In awarding the 204 days of conduct credit pursuant
to section 2933.1, the court incorrectly did not include the additional 101
days defendant spent in state hospitals awaiting return to jail. Hence, the additional 101 days defendant
spent in state hospitals while competent should have been included in the 1,296
actual days served in jail in calculating the conduct credit. Defendant was therefore entitled to 209 days
of total conduct credit (1,397 x 15%), five more days than he was awarded.
The
abstract of judgment must be amended to reflect that defendant’s actual custody
credit is 2,816 days, with conduct credit of 209 days, for a total of 3,025
days.
DISPOSITION
The superior court clerk is directed
to prepare an amended abstract of judgment and an amended sentencing minute
order reflecting a conduct credit award of 209 days and an actual custody
credit award of 2,816 days, for a total of 3,025 days. In all other respects, we affirm the
judgment.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
HOLLENHORST
J.
MILLER
J.
name="_ftn1" title=""> [1] All future statutory references are to the
Penal Code unless otherwise stated.
name="_ftn2" title=""> [2] The details of defendant’s criminal conduct
are not relevant to the limited legal issue raised in this appeal.
