P. v. Acosta
Filed 4/10/13 P. v. Acosta CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
STEVEN ACOSTA,
Defendant and
Appellant.
H037807
(Monterey
County
Super. Ct.
No. SS092540)
As part of
a plea bargain, defendant Steven Acosta pleaded no contest to charges of
(Health & Saf. Code, § 11378) and participating in a
186.22, subd. (a)).
title="">[1] Acosta also admitted to having a prior strike
conviction (§ 1170.12, subd. (c)(1)). In
exchange for this plea, Acosta was to receive a sentence of no more than five
years and four months in prison. At
sentencing, after granting the prosecution’s motion to reduce Acosta’s
conviction for participating in a criminal street gang to a misdemeanor, the
trial court sentenced Acosta to 180 days on the misdemeanor charge, which was
deemed served, and a consecutive four year sentence on the charge of possession
for sale. Acosta was granted total
credits of 129 days, consisting of 85 days of
credit.
On appeal, Acosta contends he was
entitled to credits for the one year period he spent in presentence custody
while serving a parole violation. In
addition, he argues he is entitled to additional presentence conduct credits
under the October 1, 2011 amendment to section 4019, even though the
charged offenses were committed on November 7, 2009.
We reject both arguments and shall
affirm the judgment.
I. Factual and Procedural Background
As Acosta
pleaded no contest to the charges, we derive the facts from the transcript of
the preliminary hearing and other documents in the record on appeal.
On November
6 and 7, 2009, Monterey County Sheriff Deputy Jesse Pinon conducted
surveillance on a small shed located between two residences in Salinas,
California.
On the first day, Pinon saw six or eight people walk to the front door,
get handed something by someone who resembled codefendant Rodney Sablan, then
walk away.
At about 3:00 p.m. on November 7, Pinon resumed his
surveillance of the shed and, after approximately one hour, he observed Acosta
exit the shed. Acosta stood on the porch
for a couple of minutes, then reentered the shed. As Pinon watched the shed that day, he
observed three or four people separately walk up to the door of the shed, speak
to someone inside, then leave, and Pinon believed that narcotics were being
sold out of the shed.
At
approximately 5:46 p.m., Pinon and other officers raided the shed. As the officers approached, Acosta ran from
the shed to a nearby residence, where he was detained.
Inside the
shed, officers found methamphetamine and evidence of narcotics sales, including
a digital scale, empty baggies and pay/owe sheets. There was a police scanner tuned to the
Salinas police frequency on a desk next to a laptop computer. A loaded, sawed-off .22 rifle was inside a
storage bench in front of the desk. In
addition, the officers located a clear plastic storage container labeled
“Evil’s shit.†Pinon said, based on his
prior contacts with Acosta, Acosta goes by the moniker “Evil†and is a Norteño
gang member. Pinon also testified that
Sablan is a self-admitted Norteño gang member.
In Pinon’s
opinion, the shed served as a stash house for Acosta and Sablan as a
“non-address of record . . . to stash . . . narcotics, firearms, any other
illegal contraband.†At the time of his
arrest, Acosta was on parole and was subject to a parole condition prohibiting
him from associating with gang members.
Acosta was also subject to a parole condition prohibiting him from
possessing or having access to a police scanner.
On February
10, 2010, Acosta was charged by information with possession of methamphetamine
while armed with a rifle (Health & Saf. Code, § 11370.1, count 1); being a
felon in possession of a firearm (former § 12021, subd. (a)(1), count 2);
participation in a criminal street gang (§ 186.22, subd. (a), count 4); and
possession of methamphetamine for sale (Health & Saf. Code, § 11378, count
5).
that Acosta committed counts 1, 2 and 5 for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)); that Acosta was personally armed with a firearm
during commission of the narcotics offenses (former § 12022, subd. (c));
Acosta had both a “strike†prior (§ 1170.12, subd. (c)(1)) and two prison
priors (§ 667.5, subd. (b)).
On July 27,
2011, pursuant to a plea agreement,
Acosta pleaded no contest to counts 4 and 5 and admitted the “strike†prior
allegation with the understanding he would receive a sentence of five years and
four months in prison. The matter was
referred to the probation department for preparation of a “Credits Report
Only.â€
The
probation report determined that Acosta was not entitled to credits from
November 7, 2009 to November 7, 2010 as he was in custody for a parole
violation during that period. The Board
of Prison Terms determined there was probable cause that Acosta violated the
terms of his parole by, among other things, being in possession of or having
access to a police scanner and associating with a gang member.
Acosta
brought a motion in the trial court, arguing that he was entitled to additional
credits under People v. Bruner (1995)
9 Cal.4th 1178 (Bruner), as the
criminal charges and his parole violation arose from the same conduct.
On January
12, 2012, after granting the prosecution’s motion to reduce Acosta’s conviction
for participation in a criminal street gang to a misdemeanor, the trial court
sentenced Acosta to 180 days (time served) for that offense and a consecutive
four year term, consisting of the mid-term of two years doubled due to the
prior “strike,†on the charge of possession of methamphetamine for sale. Acosta was awarded 129 days of credits,
consisting of 85 custody credits plus 44 conduct credits, which excluded the
year he spent in custody on his parole violation.
II. Discussion
A. Acosta was not entitled
to presentence credit for the parole violation term
Section 2900.5, subdivision (a)
provides in pertinent part: “In all
felony and misdemeanor convictions, either by plea or by verdict, when the
defendant has been in custody, . . . all days of custody of the defendant, including
days served as a condition of probation in compliance with a court order, . . .
shall be credited upon his or her term of imprisonment . . . .†However, section 2900.5, subdivision (b)
specifies, “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. . . .â€
In Bruner, supra, 9 Cal.4th
at page 1194, the California Supreme Court acknowledged that it is not always a
straightforward matter to determine a defendant’s entitlement to presentence
credits under section 2900.5 where multiple proceedings are in play. For that reason, 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.’ â€
(Bruner, supra, at p. 1195), the Bruner
court developed a rule of strict causation for cases where the same conduct is
implicated in multiple proceedings.
Thus, “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.†(
court further approved of a number of decisions which reasoned that a
prisoner’s “criminal sentence may not be credited with jail or prison time
attributable to a parole or probation revocation that was based
episode.†(Id. at p. 1191.) To put it
another way, “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.†(Ibid.)
In Bruner a warrant issued for the defendant’s arrest for three
alleged parole violations: absconding
from parole supervision, theft of a credit card, and cocaine use based on a
positive urine test. (
When parole agents served the warrant, they found rock cocaine in the
defendant’s possession. The defendant
was cited for possession of cocaine and released on that charge on his own
recognizance. Nonetheless, he remained
in custody under a parole hold. The
Board of Prison Terms revoked the defendant’s parole based on the three alleged
violations and his possession of cocaine, and imposed a prison term of 12
months. While the defendant was serving
that term, he pleaded guilty to the charge that he possessed cocaine, and was
sentenced to prison for 16 months. The
trial court found that the defendant was not entitled to any presentence
custody credits on the current charge. (
Appeal agreed in part with the defendant that he was entitled to presentence
custody credit, but only from the time of the formal parole revocation. (Id.
at p. 1182.) The Supreme Court reversed
the judgment of the Court of Appeal. (
After acknowledging the potential
unfairness of the strict causation rule it applied, the Supreme Court
explained, “it arises from the limited purposes of the credit statute
itself. The alternative is to allow
endless duplicative credit against separately imposed terms of incarceration
when it is not at all clear that the misconduct underlying these terms was
related. . . . [S]uch credit windfalls
are not within the contemplation of section 2900.5.†(Bruner,
supra, 9 Cal.4th at p. 1193.) Responding to the suggestion a rule of strict
causation in these circumstances worked an undue hardship on defendants, the
Court noted a “defendant’s burden, while onerous, is not necessarily
impossible.†(Id. at p. 1193, fn. 10.)
Thus, a defendant in custody on multiple causes, such as parole
violations and new charges, bears the burden of establishing that he is
entitled to presentence custody credits.
(Id. at pp. 1193-1194.)
People
v. Stump (2009) 173 Cal.App.4th 1264 (Stump)
is particularly instructive on the application of Bruner to the facts of the instant case. In Stump,
the defendant was convicted of driving under the influence of alcohol with a
prior felony within 10 years (Veh. Code, § 23152, subd. (a)), and driving with
a blood-alcohol content of at least .08 percent with a prior felony within 10
years (id. subd. (b)). Stump was arrested on July 16, 2006. At the time of his arrest he was on parole
with special conditions prohibiting him from, among other things, drinking
alcohol or driving without his parole officer’s permission. Stump was found to have violated the terms of
his parole not just by committing the two charged offenses, but also for
drinking alcohol and not obtaining the permission of his parole officer before
driving. (Stump, supra, at p.
1268.)
Stump was arraigned “with respect to
the July 16, 2006 incident†on December 20, 2006 and remained in custody
through the date of sentencing in May 2008.
(Stump, supra, 173 Cal.App.4th at p. 1268.)
He was awarded credits for the period of December 20, 2006, through
sentencing, but denied credits for the period of his prearraignment custody
(i.e., from July 16, 2006, through December 20, 2006). (Ibid.)
On appeal, Stump challenged the
court’s failure to award credits for his prearraignment custody, asserting that
this period, “was ‘attributable to proceedings related to the same conduct for
which’ he was convicted†because “there was only one ‘single, uninterrupted,
incident of misconduct,’ and ‘. . . a single episode of criminal behavior may
[not] be parsed into separate acts in order to deny the award of credit for
revocation custody . . . .’ †(
The Fourth District Court of Appeal
noted that Bruner was not “directly
on point†because “[t]he decision in [that case], inasmuch as it addressed only
a fact pattern with completely unrelated incidents--alleged parole violations
and a subsequent cocaine possession--did not address a fact pattern such as the
one before us, where all of the acts in question were temporally related.†(Stump,
supra, 173 Cal.App.4th at p.
1271.) The question presented, the court
stated, was “how the Bruner ‘but for’
test should be applied when a defendant engages in a course of illegal conduct,
such as drunk driving, that encompasses certain independent acts, none of which
would be illegal per se, but each of which happens to be a separate ground for
a parole violation, such as driving (without parole officer permission), or
consuming alcoholic beverages in any amount?â€
(Ibid.)
The court answered that question as
follows: “In the case before us, the
conduct for which defendant was arrested gave rise to two drunk driving charges
(violations of Veh. Code, § 23152, subds. (a), (b)). It is not the case that ‘but for’ a drunk
driving charge defendant would have been free of parole revocation
custody. He still would have been held
for driving, which is not necessarily a crime in and of itself but may be, and
was here, a parole violation. Likewise,
he still would have been held for consuming alcohol, which is not necessarily a
crime in and of itself but may be, and was here, a parole violation. [¶] Penal
Code ‘section 2900.5 did not intend to allow credit for a period of presentence
restraint unless the conduct leading
to the sentence was the true and only
unavoidable basis for the earlier custody.’
(Bruner, supra, 9 Cal.4th at p. 1192.)
Here, the conduct of driving under the influence of alcohol, for which
defendant was sentenced in the underlying action, was not the ‘only unavoidable
basis’ for the custody. The act of
driving without permission was a basis for the earlier custody. The act of drinking alcohol, irrespective of
driving, was a basis for the earlier custody.
‘ “Section 2900.5 does not authorize credit where the pending proceeding
has no effect whatever upon a defendant’s liberty.†[Citation.]’
(Id. at p. 1184.)†(Stump,
supra, 173 Cal.App.4th at p. 1273.)
Here Acosta would not have been free
of custody “but for†the possession of methamphetamine for sale and
participating in a criminal street gang
charges. Like Stump, this is not a case in which the conduct leading to the
sentence was the “true and only
unavoidable basis†for the period of custody in question. (Bruner,
supra, 9 Cal.4th at p. 1192.) Acosta violated his parole by, among other
things, associating with a gang member (i.e., Sablan) and having access to a
police scanner. Neither of those actions
are illegal per se. For example, if
police raided the shed in the good faith belief that drug sales were taking
place on the premises, but instead found Acosta and Sablan simply watching
television, with a police scanner on a nearby table, without any drugs,
paraphernalia, firearms, etc., there would be no basis for charging him with
drug or firearm offenses. Under the
circumstances, Acosta would be guilty of nothing more than violating the
aforementioned parole conditions. However,
since he was not merely associating
with a gang member in violation of his parole, but was associating with a gang
member for the purposes of, among other crimes, selling drugs for the benefit
of the gang, Acosta cannot establish that “but for†the drug, firearm and gang
charges he would not have been in custody.
Accordingly, the trial court properly denied him credits for the period
from November 7, 2009 to November 7, 2010.
B. Acosta is not entitled
to additional credits under section 4019
A criminal defendant is entitled to
accrue both actual presentence custody credits under section 2900.5 and conduct
credits under section 4019 for the period of incarceration prior to
sentencing. Conduct credits may be
earned under section 4019 by performing additional labor (§ 4019, subd. (b))
and by an inmate’s good behavior. (
collectively referred to as conduct credits.
(People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with awarding such
credits at sentencing. (§ 2900.5, subd.
(a).)
Before January 25, 2010, conduct
credits under section 4019 could be accrued at the rate of two days for every
four days of actual time served in presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4554 [former
§ 4019, subd. (f)].) Effective January
25, 2010, the Legislature amended section 4019 in an extraordinary session to
address the state’s ongoing fiscal crisis.
Among other things, Senate Bill No. 3X 18 amended section 4019 such that
defendants, with some exceptions,
name="_ftnref5" title="">[5]
could accrue custody credits at the rate of two days for every two days
actually served, twice the rate as before.
Effective September 28, 2010,
section 4019 was amended again to restore the presentence conduct credit
calculation that had been in effect prior to the January 2010 amendments,
eliminating one-for-one credits. By its
express terms, the newly created section 4019, subdivision (g), declared the
September 28, 2010 amendments applicable only to inmates confined for a crime
committed on or after that date. (Stats.
2010, ch. 426, § 2.)
Thereafter, the Legislature amended
section 4019 yet again, reinstituting one-for-one conduct credits and making
this change applicable to crimes committed on or after October 1, 2011, the
operative date of the amendments. (§ 4019, subds. (b), (c), & (h).) Acosta committed his crimes on November 7,
2009, nearly two years before the effective date of this particular amendment.
In his opening brief, Acosta argued
that pursuant to equal protection principles, the amendment to section 4019
that became effective October 1, 2011, must be retroactively applied to
him. However, in his reply brief, he
concedes that the California Supreme Court’s decision in People v. Brown (2012) 54 Cal.4th 314, has foreclosed that line of
attack. We agree. (See People
v. Kennedy (2012) 209 Cal.App.4th 385, 396-397 [reasoning in
effective Oct. 1, 2011].)
However, Acosta maintains he is
statutorily entitled to increased presentence conduct credits for the time in
custody after October 1, 2011, though he acknowledges that the case on which he
relies for this proposition
name="_ftnref6" title="">[6]
is no longer citable. We think the
explicit language of the statute is clear:
the 2011 amendment to section 4019 applies only to crimes that were
“committed on or after October 1, 2011.â€
(§ 4019, subd. (h).) Acosta,
having committed his crimes on November 7, 2009, does not qualify for the
credits available under the amended statute.
The judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
name="_ftn1" title="">[1]
Further unspecified statutory references are to the Penal Code.
Former section 12021, subdivision (a)(1) was repealed operative January 1,
2012, but its provisions were reenacted without substantive change as section
29800, subdivision (a)(1). (See
334, fn. 1; Stats. 2010, ch. 711, § 4.)
