P. v. Loya
Filed 7/19/12 P. v. Loya CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Appellant,
v.
GABRIEL MICHAEL LOYA,
Defendant and Respondent.
E053870
(Super.Ct.No.
RIF10001310)
OPINION
APPEAL from
the Superior Court
of
County. Helios (Joe)
Hernandez, Judge. Reversed with
directions.
Paul E.
Zellerbach, District Attorney and Matt Reilly, Deputy District Attorney for
Plaintiff and Appellant.
Denise M.
Rudasill, under appointment by the Court of Appeal, for Defendant and
Respondent.
Gabriel Michael Loya pled guilty to
separate counts of possessing marijuana while incarcerated at California
Rehabilitation Center (CRC)
name="_ftnref1" title="">[1] and admitted an allegation under the Strikes
law, pursuant to an indicated sentence by the court. Over the People’s objection, the court
indicated it would order the terms for the two new offenses to run consecutive
to the term he was serving at CRC, and it would calculate the term for both
offenses at one-third the midterm. The
defendant was sentenced as the court had indicated, and was awarded presentence
credits to defendant. The People
appealed.
On appeal,
the People assert that the indicated sentence was unauthorized. In their supplemental briefs submitted at our
request, the People argue defendant was not entitled to presentence credits
against his term, while defendant argues that the record is ambiguous as to
whether he had been paroled prior to sentencing. We reverse and remand to the lower court for further
proceedings.
BACKGROUND
On April 7, 2009, a correctional officer
working at CRC observed defendant standing near his locker rolling something in
a piece of paper. The correctional
officer approached defendant and instructed defendant to hand over the paper,
which was found to hold a leafy substance resembling tobacco. After the officer confiscated the paper and
its contents, he examined it more closely and suspected that the paper
contained marijuana. The material tested
positive for marijuana.
Defendant
was charged in case No. RIF10001310 with possessing marijuana while in CRC, in
violation of Penal Code section 4573.6.
It was further alleged he had previously been convicted of a serious or
violent felony under the Strikes law.
(Pen. Code, §§ 667, subds. (c), (e)(1), 1170.1, subd. (c)(1).)
On March 16, 2010, defendant was
detained by correctional officers who observed him chewing on something. One officer was instructed to escort
defendant to the facility program office.
En route, defendant spit out what was suspected to be marijuana. The escort officer took possession of the
material defendant had spit out and conducted a test on it, confirming that the
material was marijuana.
Defendant
was charged with one count of possessing marijuana in CRC (Pen. Code, §
4573.6), and with a special allegation under the Strikes law, in case No.
RIF10002355. (Pen. Code, §§ 667, subd.
(e)(1), 1170.12, subd. (c)(1).) An
amended information charged defendant with one count of violating Penal Code
section 4573.6, and one count of violating Penal Code section 4573.8, along
with the Strikes law allegation. The two
cases were consolidated for trial.
At the time
of trial, the court indicated it would sentence defendant to 40 months, by
imposing “one-third the midterm, consecutive, doubled.†Defendant pled guilty to counts 1 (Pen. Code,
§ 4573.6), and 2 (Pen. Code, § 4573.8), and admitted the Strike
allegation. The change of plea form,
which was not signed by the prosecutor, specified a sentence of 40 months in
On April 22, 2011, defendant was
sentenced in accordance with the indicated sentence. The court imposed one-third the middle term
(three years, divided by three, equals one year) on count 1, which, when
doubled, resulted in a term of two years for count 1. The court imposed a consecutive sentence
calculated as one-third the midterm of two years (eight months), which, when
doubled, resulted in a term of one year four months for count 2. The total term imposed was three years four months. The court awarded defendant presentence
custody credit of 121 days actually served, plus 60 days of conduct credit for
total presentence credit of 181 days.
DISCUSSION
1.
On appeal,
the People challenge the sentence imposed by the trial court as an unauthorized
sentence. The People argue that the trial court improperly treated both of the
current offenses as subordinate to the original carjacking sentence which the
defendant was serving at the time of the commission of the new crimes. We agree.
Penal Code
section 1170.1, subdivision (c), provides in relevant part, “In the case of any
person convicted of one or more felonies committed while the person is confined
in a state prison or is subject to reimprisonment for escape from custody and
the law either requires the terms to be served consecutively or the court
imposes consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence from the time
the person would otherwise have been released from prison.â€
In
construing Penal Code section 1170.1, subdivision (c), we must try to give
effect to every phrase and paragraph, leaving no part of the statute useless or
deprived of meaning. (
342.) The general “punitive purpose†of
the sentencing rules is to assure that prison terms are “proportionate to the
seriousness of the offense and uniform among persons committing the same offense
under similar circumstances. (§ 1170,
subd. (a), par. (1).)†(
accord different and more severe punishment to those convicted of felonies
while confined in a state prison, to protect the public from recidivist
offenders and promote the safety of correctional officers. (People
v. White (1988) 202 Cal.App.3d 862, 869.)
When an in-prison offense is imposed consecutively, it is fully
consecutive to the offense for which the defendant was imprisoned. (People
v. Holdsworth (1988) 199 Cal.App.3d 253, 256.)
Penal Code
section 1170.1, subdivision (c) requires imposition of a single aggregate
sentence for multiple in-prison offenses, even if the offenses and convictions
occurred several years apart. (
1731, 1743.) In other words, the first
in-prison offense is treated as a new principal term rather than as a
subordinate term to the out-of-prison offense.
(People v. McCart, supra, 32
Cal.3d 338, 344.) Subsequent in-prison
offenses are treated as subordinate, reduced according to the one-third base
term formula where consecutive sentences are imposed for multiple in-prison
offenses. (Id. at pp. 345-346; Venegas, at
pp. 1742-1743.)
The
interpretation expressed in the foregoing authorities relates to
serving a prison sentence, as well as persons subject to recommitment following
an escape. Under Penal Code section
1170.1, subdivision (c), a term for a single in-prison offense or multiple
in-prison offenses begins to run at the end of the prison term imposed for the
original out-of-prison offenses. (
764-765.) The term for an in-prison
offense does not become part of the aggregate prison term imposed for those
offenses which were committed “on the outside.â€
(People v. White, supra, 202
Cal.App.3d at p. 870.) “[C]onsecutive
sentences imposed for additional crimes committed
in prison are deemed to commence when the prison would otherwise have been
released.†(People v. Langston (2004) 33 Cal.4th 1237, 1242 [italics in
original].)
In
calculating sentence terms for crimes committed in prison, a “box theory†is
used. (People v. White, supra, 202 Cal.App.3d at p. 870.) In the first box, the defendant is imprisoned
for a total term consisting of the sum of his original aggregate sentence
computed under Penal Code section 1170.1, subdivision (a) (the outside
offenses). In the second box, a new
aggregate term is imposed under Penal Code section 1170.1, subdivision (c), for
the offenses committed while imprisoned.
(People v. White, supra, 202
Cal.App.3d at p. 870, citing
340.) The latter term starts to run at
the end of the prison term imposed for the defendant’s original “outsideâ€
offense. (White, at p. 870; McCart, at
p. 340.) The total term is computed by
adding the total of the two boxes together.
(White, at p. 870.)
In
a prison term when he committed his first in-prison offense. He was sentenced on the in-prison offense and
the term for the in-prison crime was ordered to run consecutive to the original
sentence. Then the defendant committed a
second in-prison offense, for which he was convicted and sentenced to a term
that was ordered to run consecutive to the previous term. The California Supreme Court held that Penal
Code section 1170.1, subdivision (c) called for computation of a single term of
imprisonment for all convictions of felonies committed in prison and sentenced
consecutively, whether multiple convictions occur in the same court proceeding
or in different proceedings. (
343.) It further held that the new
(aggregate) term is to be fully consecutive to the term already being
served: i.e., that it must commence at
the end of the longest of the prisoner’s previously imposed terms. (Ibid.)
In
computing the indicated sentence here, the trial court misconstrued Penal Code
section 1170.1, subdivision (c) and treated both in-prison offenses as
subordinate to the original “outside†offense.
Although one of the in-prison terms was properly ordered to run
consecutive to the term for the other in-prison crime as a subordinate term, it
seems clear that the Legislature intended that aggregate sentence for the
in-prison offenses, sentenced consecutively, should begin to run from the
expiration of the prior term for the outside offenses. (In re
Curl (1983) 149 Cal.App.3d 236, 240.)
Remand for resentencing is required.
2.
Defendant Was Entitled to Presentence Custody Credit.
The trial court awarded custody
credits to the defendant based on the assumption that defendant was paroled in
December 2010, a few months before the sentence on the in-prison offenses. However, the People informed the court that
the defendant’s actual parole date was May 22, 2011, one month after the
sentencing hearing.
We asked
the parties to provide simultaneous supplemental briefing on the question of whether
the defendant was entitled to custody credits pursuant to In re Rojas (1979) 23 Cal.3d 152, 155-157.) The People argue that defendant was not on
parole at the time of sentencing, although they acknowledge the record is
unclear on this point. Defendant
acknowledges that because the record is unclear as to his status at the time of
sentencing, arguing we should adopt the interpretation that favors him, or
refer the matter back to the trial court with directions to hold a hearing to
determine the correct parole date. We
remand the matter for a determination of whether or not the defendant had been
paroled in December, 2010.
Subdivision
(d) of Penal Code section 2900.5 provides that it is the “duty of the court
imposing the sentence to determine the date or dates of any admission to, and
release from, custody prior to sentencing and the total number of days to be
credited pursuant to this section. The
total number of days to be credited shall be contained in the abstract of
judgment provided for in Section 1213.â€
The intent of this provision is to assign the task of resolving factual
and legal disputes to the sentencing court and to insure an adequate record for
appellate review and administrative application. (People
v. Blunt (1986) 186 Cal.App.3d 1594, 1601.)
A failure
to accurately award custody credits results in an unauthorized sentence,
subject to correction at any time. (
Cal.App.4th 1123, 1140; People v. Jack (1989)
213 Cal.App.3d 913, 916-917.) Where the
record is unclear whether the defendant was serving a sentence at the time he
was sentenced, the court should conduct an evidentiary hearing to determine if
the defendant is entitled to presentence custody credits. (In re
Williams (2000) 83 Cal.App.4th 936, 942-943.) On remand, we direct the court to conduct
such a hearing to determine the defendant’s actual parole date, in order to
determine if he was eligible for custody credits.
3.
The
abstract of judgment reflects the terms imposed by the court for counts 1 and 2
on the front page. Line 4 of the
Judicial Council Form contains a box to be checked by the court clerk to
indicate if the defendant was sentenced under the Strikes law. That box is unchecked.
On the back
side of the form, line 11 includes a space for “Other orders.†On this line, the clerk has indicated that
defendant was sentenced pursuant to Penal Code section 667, subdivision (e)(1),
referring to the Strikes law.
The
abstract of judgment constitutes the commitment and is the order sending the
defendant to prison, and the process and authority for carrying the judgment
and sentence into effect; no other warrant or authority is necessary to justify
or require its execution. (Pen. Code, §
1213; People v. Mitchell (2001) 26
Cal.4th 181, 185, citing In re Black (1967)
66 Cal.2d 881, 890.) It goes without
saying that accuracy is essential in a document that prescribes the execution
of sentence and is provided to Criminal Investigation and Identification. (Pen. Code, § 1213, subd. (a).)
This court
has the authority to correct clerical errors at any time. (People
v. Mitchell, supra, 26 Cal.4th at pp. 186-187.) The clerk is directed to amend the abstract
of judgment to reflect that the sentence was imposed under the Strikes law by
checking the box on line 4, and to delete the “other orders†under line 11.
DISPOSITION
The
sentence is reversed and the matter remanded to the trial court for further
proceedings in accordance with the views expressed in this opinion.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P
.J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1]
Defendant was serving a sentence at CRC; he was not committed to CRC
pursuant to an addiction proceeding.
(Welf. & Inst. Code, § 3050 et seq.)
name="_ftn2" title=""> [2] The
court had previously assumed defendant was paroled on December 23, 2010. However, at the sentencing hearing, the
People informed the court that defendant’s actual parole date was May 22, 2011.
