P. v. Carrillo
Filed 1/9/14 P. v. Carrillo
CA6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY RALPH
CARRILLO,
Defendant and Appellant.
H037487
(
Super. Ct. Nos.
SS082394, SS071574,
SS082442)
A jury convicted defendant Timothy Ralph
Carrillo of three counts of grand theft (Pen. Code, § 487, subd. (a)),
four counts of theft from an elder adult (§ 368, subd. (d)), five counts
of first degree burglary (§ 459), six counts of
(§§ 508, 487, subd. (a)), and six counts of contracting without a license (Bus.
& Prof. Code, § 7028, subd. (a)). Defendant waived his right to a jury trial on
various prior conviction enhancement allegations, and the trial court found
them to be true. The court denied defendant’s
motion
requesting dismissal of his prior strike conviction pursuant to
term of 35 years in prison, “consecutive to any other sentence that you’re
serving in any other state,†including the 25-year term that he was then serving
in Texas.
On appeal, defendant contends that the
denying his motion to dismiss for failure to comply with section 1389, California’s
codification of the Interstate Agreement
on Detainers (IAD); (2) abused its discretion in denying his
to award him one day of presentence custody credit. We affirm.
I.
Background
Posing as a licensed contractor, defendant
entered into painting, roofing, and other repair and renovation contracts with elderly
homeowners from 2006 through 2008 and took thousands of dollars in payment from
them without performing any of the work he promised. He was on parole and/or on probation when he
committed these offenses.
On May 2, 2007, the
first of three cases alleging numerous theft-related felonies and contracting
without a license was filed against defendant.
In late 2007, there were warrants outstanding for his arrest in that
case and for violating his probation in a
2005 misdemeanor driving
under the influence (DUI) case by failing to enroll in a first offender DUI
program. Defendant was apprehended on March 4, 2008, and released on bail that same day. On March 12, 2008,
the trial court informed him of the charges in the felony case and revoked his
probation in the DUI case “to retain jurisdiction.â€
Two additional felony cases alleging
theft-related crimes and contracting without a license were filed in 2008.
cases and on the probation violation in the DUI case. The trial court ordered his bail forfeited, revoked
his probation, and issued a bench warrant for his arrest.
In March 2009, the bail bondsman successfully
moved to vacate the bond forfeiture on the ground that defendant was
incarcerated in Texas. The district attorney told the
court it had “a hold†on defendant, who would be transported to Monterey County once charges
pending against him in Texas and in Alameda County were resolved.
On January 22, 2010, the Texas Department of Criminal Justice (TDCJ) wrote the Monterey County and the
Santa Cruz County Sheriff’s offices that “[n]otations have been made on our
records indicating that [defendant] will be wanted by your office upon release
from this institution.†The TDCJ gave
defendant copies of both letters with notices describing his rights under the
IAD.
In a December 23, 2010 letter to the Monterey
County Superior Court in Salinas, defendant asserted that he had “received
detainers from your county as well as Santa Cruz County on 1-22-10 and filed
the attached Request for final disposition on All untried indictments,
informations or complaints from your state which I have heard nothing from your
county.†Defendant wrote that he was
“again requesting final disposition of all indictments, informations and
complaints from your county. . . .
Please Acknowledge receipt of this letter and send me any further forms
necessary to complete my request.†The “attached
Request†that defendant referred to is not included in the record on appeal.
In a March 7, 2011
letter to the clerk of the Monterey County Superior Court in Salinas, defendant wrote,
“Enclosed is an official updated Time sheet stating term being served, Good
Time earned and parole eligibility, please Add to file for your records. An additional copy will be sent to the
District Attorney’s office for Mr. Pesenhofer.
The Enclosed is final paperwork require by I.A.D.A. [¶]
Please send response stating you have received the enclosed Timesheet.â€
In a March 21, 2011
letter to the Monterey County Superior Court, defendant wrote, “In addition to
letter sent on 3-7-11 I am requesting pro se that no continuances be granted without my
presence as well as no waivers of any rights without my actual presence in
court . . . . [¶] The above is regarding my rights under the
Interstate Agreement on Detainers Act, which the Court received on Feb 22, 2011.â€
On April 1, 2011, Monterey
County Deputy District Attorney Glenn Pesenhofer signed and dated a “Form V --
Interstate Agreement on Detainers -- Request for Temporary Custody.†Addressed to the TDCJ, the form sought temporary
custody of defendant “pursuant to Article IV(a) of the [IAD].†Monterey County Superior Court Judge Timothy
P. Roberts signed and dated the form on April 4, 2011, certifying that Pesenhofer
was “an appropriate officer within the meaning of Article IV(a) and that the
facts recited in this request for temporary custody are correct and that having
duly recorded said request I hereby transmit it for action in accordance with
its terms and the provisions of the IAD.†Despite Pesenhofer’s and Judge Roberts’s
handwritten attestations that they signed Form V in April 2011, the clerk’s file stamp indicated a filing date of April 4, 2010—exactly one year before
Judge Roberts signed the form.
Defendant arrived in Monterey County from Texas on June 20, 2011, “or there abouts [sic].â€
At the beginning of his preliminary
examination on July
1, 2011, his counsel moved to dismiss all
charges on the ground that defendant had invoked his rights under section 1389 “over
a year ago†and had not been brought to trial within the 180-day period
prescribed by the statute. Counsel claimed
that defendant had “forwarded a request, in February [2010], to the warden of
the institution in which he was housed in Texas to ask that he be brought to
Monterey County in order to face the charges . . . . And no response was ever received from Monterey County, nor
was he transported until earlier this year, which, again, was more than 180
days after his initial request.†The
trial court deferred a ruling for failure to properly notice or brief the
motion. The preliminary examination
proceeded, and defendant was held to answer.
Defendant filed a properly noticed section
1389 motion to dismiss on July 11, 2011. In his motion papers, he asserted that upon
learning that Santa Cruz and Monterey counties had lodged detainers against him, he “promptly initiated an
[IAD] request, and this written request along with the required paperwork was
forwarded to Santa Cruz County on March 19, 2010.†“See
Exhibit C, affidavit of TDCJ IAD Department employee,†defendant’s motion
papers stated, explaining in a footnote that the affidavit was “forthcomingâ€
and would be submitted “separately in advance of the motion hearing date.†There is no evidence in the record that any
such affidavit was ever provided to the trial court, and it is not included in
the record on appeal.
In his motion papers, defendant also contended
“that he also promptly initiated an IAD request with regard to the Monterey
County detainer in February or March 2010, however, TDCJ has no information
with regard to that request; TDCJ only shows that notice of the detainer was
sent to [defendant] on January 22, 2010.â€
The district attorney opposed defendant’s
section 1389 motion on the ground that there was “absolutely no showing†of
compliance with the IAD’s procedural requirements. The notices of detainer from the TDCJ that
defendant attached to his motion were “incomplete documents,†the district
attorney pointed out. “The signature and
date pages have been excluded, and one could argue the reason for their exclusion
is because they are not favorable to the defendant’s position.†Defendant’s assertion that Santa Cruz County had dismissed
its case against defendant and cancelled its detainer, the district attorney
argued, “doesn’t provide any proof of proper notice to the Santa Cruz County
District Attorney’s Office,†but “only show[s] that Santa Cruz [County]
Superior court dismissed the case.â€
The parties submitted the matter on the
papers, and the trial court denied the motion.
“I do not feel that there is sufficient evidence to compel the Court to
dismiss the matter,†the court explained.
The parties proceeded to trial, and defendant
was convicted and sentenced as previously described. He filed a timely notice of appeal.
II.
Discussion
A. Section
1389 Motion to Dismiss All Charges
Defendant claims the trial court
prejudicially erred and violated his federal and state constitutional rights to
a speedy trial and to due process when it denied his section 1389 motion to
dismiss the charges against him. The
Attorney General responds that defendant failed to show he complied with the
IAD’s provisions and thus has not established that the 180-day period
prescribed by the IAD was ever triggered. We agree with the Attorney General.
California and Texas are parties to the IAD, “an agreement among 48 states, the District of Columbia, Puerto Rico, the Virgin Islands, and the federal government that seeks to dispose of untried
charges from states other than the one in which a prisoner is currently
incarcerated.†(People v. Oiknine (1999) 79 Cal.App.4th 21, 23-24, 26;
484, 487 (Castoe).) When a state lodges a detainer based on an uncharged
indictment, information or complaint against a prisoner in another
jurisdiction, the prisoner must be “promptly†notified of the detainer and informed
“of his right to make a request for final disposition†of the pending charges. (§ 1389, art. III, subd. (c).) Either the prisoner or the prosecutor in the
state where charges are pending may then initiate procedures leading to
transfer and disposition of the charges. (§ 1389, arts. III, IV.) If the prisoner initiates the request, he must
be brought to trial within 180 days after the appropriate court and prosecutor
receive formal notification. (§ 1389,
art. III, subd. (a); Fex v. Michigan
proceeding, the prisoner must be brought to trial within 120 days of the
prisoner’s arrival in the receiving state.
(§ 1389, art. IV, subd. (c).)
“The failure of the state receiving the request to act in compliance
with the IAD and the 180-day [or the 120-day] limit results in dismissal of the
pending criminal charges with prejudice.â€
(People v. Brooks (1987) 189
Cal.App.3d 866, 872 (Brooks).)
“In order to take advantage of the sanction
of dismissal, the prisoner must comply with the procedural requirements of the
IAD.†(People
v. Lavin (2001) 88 Cal.App.4th
609, 616 (Lavin).) The
procedures for prisoner-initiated transfers are found in article III. “ ‘ “Article III,
subdivision (a) provides that the 180-day period is to run from the date the
prisoner ‘shall have caused to be delivered’ a written notice and request for
final disposition to the district attorney and the court. Article III, subdivision (b) clearly states
that the prisoner shall give or send the notice and request to the warden,
commissioner of corrections or other official having custody of the prisoner.†[Citation.]
[¶] The warden then prepares a
certificate “stating the term of commitment under which the prisoner is being
held, the time already served, the time remaining to be served on the sentence,
the amount of good time earned, the time of parole eligibility of the prisoner,
and any decisions of the state parole agency relating to the prisoner.†(§ 1389, art. III, subd. (a).)’ [Citation.]â€
(Lavin, at p. 616.)
Defendant argues that the trial court erred
in denying his section 1389 motion, since he “made a valid demand for trial in California†in
early 2010. We find nothing in the
record to support that claim. The
letters that defendant sent to the district attorney and/or to the superior
court were dated well after the request he claimed to have made “in February or
March 2010†and were in any event ineffective to invoke his rights under the
IAD because, among other deficiencies, they were not sent through the warden of
the Texas prison. (Castoe, supra, 86
Cal.App.3d at p. 490 [“Article III . . . does not permit a prisoner’s self-help
effort to start the running of the 180-day period.â€]; accord,
court was “clearly insufficient to invoke the time period of section 1389â€].)
In his motion below, defendant purported to
rely on a “forthcoming†affidavit of a “TDCJ IAD Department employee,†but no
such affidavit was ever produced, and defendant was forced to concede that the TDCJ
had “no information†about the IAD request that he claims to have made “in
February or March 2010.†(Italics
omitted.) Thus, no evidence supports his
claim that he made a valid IAD demand “in February of March 2010.â€
Defendant argues, however, that the Santa
Cruz County Superior Court’s May 26, 2010 dismissal of its case
against him and the TDCJ’s subsequent cancellation of Santa Cruz County’s
detainer “establishes that [defendant] properly presented his demands for trial
to the warden of the Texas prison, who would have been required to forward
them, along with the certifications, to both the Santa Cruz County authorities
and the Monterey County authorities.†We
are not persuaded. The minutes of the May 26, 2010 hearing state that the Santa Cruz charges
against defendant were “dismissed in the interest of justice.†They establish nothing more than that.
Defendant argues that the IAD request he
claims to have made “in February or March 2010†must have been delivered to Monterey County because
“the district attorney responded by requesting [defendant’s] temporary custody
in a form filed on April 4, 2010.†The argument lacks merit.
It is pure speculation that the form
defendant relies on was sent in response to any sort of communication from him. It is doubtful, moreover, that the form was “filed on April 4, 2010.†Entitled “Form V -- Interstate Agreement on Detainers -- Request for
Temporary Custody,†the form was signed and dated by Pesenhofer and by Judge
Roberts on April 1 and April 4, 2011. The file stamp indicates a filing date a year earlier,
on April 4,
2010.
“The significance here,†defendant urges, “is
the filing date of April 4, 2010.†This is his only reference to the obvious
disparity between the “2010†file stamp and the “2011†dates that Pesenhofer
and Judge Roberts both handwrote next to their signatures. Defendant does not attempt to explain how Pesenhofer
and Judge Roberts, who signed and dated the request three days apart, could
date is the correct one. We find the
assumption insupportable.
We think it is far more likely that the
filing date stamped on the document was the result of clerical error. Pesenhofer signed the request for temporary
custody on April 1, 2011. Judge Roberts signed it
three days later, on April 4, 2011. The date Judge Roberts handwrote on the
document and the date the court clerk stamped on it are exactly one year
apart. Clerical error is the most
reasonable explanation for the discrepancy.
(See, e.g.,
1468, 1472, fn. 3 [“The motion bears the clerk’s
filing stamp of January 25, 1988, but the motion is dated January 25, 1989, and
it is clear from the sequence of events in the record that the correct date for
that motion is 1989; this is only a clerical error.â€];
Cal.App.2d 50, 54 [“This second delay without any activity was interrupted on
April 1, 1968, by defendant who, miscalculating the time through a clerk’s
error in affixing the filing date to her copy of the complaint (the stamp shows
1963 instead of 1964), filed a motion to dismiss.â€].)
Our conclusion is bolstered by the fact that
an April 4, 2011 filing date fits the sequence of events in the record. Two plausible scenarios support an April 4, 2011 filing date; none support an April 4, 2010
filing date.
The form states on its face that it was made
“pursuant to Article IV(a) of the [IAD].â€
It also states that the district attorney “propose[d] to bring this
person to trial . . . within the time specified in Article IV(c) of the
IAD.†This language suggests to us that
defendant’s transfer was initiated not by defendant under article III of the
IAD but instead by the district attorney under article IV. (§ 1389, art. IV.) Pesenhofer signed the request on April 1, 2011; Judge Roberts approved it, and it was presumably then sent to Texas. (§ 1389, art. IV, subd. (a).) Defendant arrived in California approximately
11 weeks later. The 11-week interim would
have given the Texas prison authorities time to make arrangements for his
transfer and, more importantly, to comply with the IAD’s requirement of a
30-day waiting period “after receipt by the appropriate authorities [of a
prosecutor-initiated request] before the request be honored, within which
period the governor of the sending state may disapprove the request for
temporary custody . . . .†(§ 1389,
art. IV, subd. (a).) Defendant’s trial
commenced on August
15, 2011, eight weeks after his arrival
and, therefore, well within the 120-days-after-arrival limitations period that
the IAD prescribes for prosecutor-initiated transfers. (§ 1389, art. IV, subd. (c).)
Defendant’s own assertions suggest an
alternative scenario that also fits the sequence of events in the record. Defendant claimed to have made a “second†IAD request
in early 2011. In his motion papers, he
asserted that he “[f]inally . . . decided to cause delivery himself to Monterey County of his
IAD request . . . . On February 22, 2011, Monterey County received [this] personally served notice of request for
final disposition pursuant to [the] IAD and caused [defendant] to be delivered
to the State of California . . . .†Defendant’s claimed
second request is not in the record,
but there are references to it. At a
trial-setting conference on July 1, 2011, for example, his trial counsel
referred to “the 1389 that has been accepted by the District Attorney†and
stated that “[o]n the 1389 demand that was received by the District Attorney,
the last day [to try the case] would . . . be [August] 20th . . . .†.
The IAD requires that a defendant be brought
to trial within 180 days after the court and the prosecuting authority actually
receive a prisoner-initiated IAD transfer request. (§ 1389, art. III, subd. (a);
507 U.S. at p. 52.) August 20, 2011, which the defense asserted was the “last day†to try the case
under section 1389, is 180 days after February 22, 2011, the date on which defendant claimed the district attorney
“accepted†his IAD request.
The record thus supports a conclusion that the
form request for temporary custody was triggered either by the district
attorney or by an IAD request that defendant initiated in 2011 rather than “in February or March 2010.†Defendant’s reliance on the form to support
his section 1389 motion was therefore misplaced. There was no evidence to support his claim that
he invoked the protection of the IAD in 2010.
The trial court properly denied defendant’s motion. (E.g., People
v. Garner (1990) 224 Cal.App.3d 1363, 1370-1371 [section 1389 motion
properly denied where, among other things, “[t]he record here shows neither the
October nor November request was presented to the wardenâ€];
p. 869 [section 1389 motion properly denied where, among other things, there
was “no evidence the Oregon State Penitentiary authorities completed the
certificate required to accompany Brooks’s IAD request.â€].)
It follows that there was no violation of defendant’s
constitutional rights. (
675 [“Because there was no state law error, neither
was there any predicate for a constitutional violation.â€].)
B.
Defendant contends that the trial court
abused its discretion and violated his due process rights by denying his
“[A] court’s failure to dismiss or strike a
prior conviction allegation is subject to review under the deferential abuse of
discretion standard.†(
374 (Carmony).) “In reviewing for abuse of discretion, we are
guided by two fundamental precepts. First,
‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve the legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.†’ [Citations.] Second, a ‘
“decision will not be reversed merely because reasonable people might
disagree. ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ †’ [Citations.] Taken together, these precepts establish that
a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.†(Carmony,
at pp. 376-377.)
“[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code
section 1385(a), or in reviewing such a ruling, the court in question must
consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not presently been convicted of one or more serious
felonies and/or violent felonies.†(People
v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
Applying that analysis here, the trial court found
that defendant “clearly fit the purpose of the three strikes law.†Indeed, the court added, “there probably
aren’t too many people that fit it as well as he does.â€
The record supports the trial court’s conclusion.
The probation report described defendant
as “a multi-state offender†with an extensive criminal history in California, Colorado, and Texas. He had accumulated 10 felony and numerous
misdemeanor convictions between 1978 and 2007, including convictions for first degree
burglary, obtaining money by false pretenses, grand theft, forgery, battery,
and felony DUI. Two prison terms in California, a
third in Colorado, and “countless years, months, and days, in jails†did not persuade
him to change his criminal ways, and he was serving a 25-year sentence in Texas when he was
tried in this case. Although he has repeatedly
been granted probation, his performance could “only be described as
contemptible.†He “absconded from every
grant of probation and parole he was placed on, and failed to appear in Court
on multiple occasions.†He was on parole
and/or on probation when he committed many of the offenses in this case. His 30-year criminal record, in short, made
him “the kind of revolving-door career criminal for whom the Three Strikes law
was devised.†(People v. Gaston (1999) 74 Cal.App.4th 310, 320 (
Defendant argues, however, that his prior
strike was too remote, having occurred “almost 32 years ago,†when he was
“merely 19 years old†and “dependent on alcohol consumption and gambling.†Courts have routinely rejected similar
arguments where the defendant did not live a crime-free life between his or her
strike prior and current crimes. (E.g.,
17-year-old prior where the defendant’s “continuous crime spree . . . substantially
spanned his entire adult lifeâ€]; People
v. Barrera (1999) 70 Cal.App.4th 541, 554-555 (Barrera) [refusal to dismiss 14-year-old strike justified where the
defendant’s criminal activity “continued unabated†upon his release from
prison, “despite . . . the drug rehabilitation efforts†he claimed to have made];
People v. Humphrey (1997) 58
Cal.App.4th 809, 813 (Humphrey)
[reversing the dismissal of a 20-year-old prior].) “In determining whether a prior conviction is
remote, the trial court should not simply consult the Gregorian calendar with
blinders on.†(Humphrey, at p. 813.) A
remote prior may properly be stricken where the record establishes “a
crime-free cleansing period of rehabilitation after a defendant has had the
opportunity to reflect upon the error of his or her ways.†(Ibid.)
That was not the case here. Here, as in the above cases, defendant’s
30-year criminal record renders the remoteness of his prior strike “not
significant.†(Gaston, at p. 321.)
Defendant also urges that his prior strike
for first degree burglary is the only serious or violent offense on his record
and did not involve “any actual violence.†The argument lacks merit. “[T]he Three Strikes law does not require
. The Three Strikes law only requires
that a defendant be convicted of a current felony and have ‘one or more prior
[serious or violent] felony convictions . . . .’ †(People v. Strong (2001) 87 Cal.App.4th 328, 340.) Where a defendant comes within the letter of
the three strikes law, the Strong court
reasoned, he cannot logically argue that his “commission of
lengthy period†should operate as mitigation so as to take him outside the
spirit of the law. (Ibid.)
The logic applied in Strong applies here.
Defendant’s crimes since his 1978 strike offense, while not classified
as violent or serious felonies, were “far from trivial.†(Gaston,
supra, 74 Cal.App.4th at p. 322.) He had “developed a sophisticated, well
orchestrated criminal enterprise,†and he used his acquired salesman’s skills
to cheat elderly people. His “predatory
actions†instilled fear and a sense of insecurity in his victims and caused
them financial and emotional hardship.
Instead of taking responsibility for his decisions, defendant “blamed
alcohol and gambling†for his choices and “used his traumatic childhood
experiences as an excuse . . . .†His
callous actions were “inexcusable and richly deserving of [a] lengthy prison
sentence . . . .â€
The trial court emphasized the harm defendant
caused his victims. “[Y]ou’re a
predator,†the court told him. Most
people “want to protect and want to look out for elderly people. We want to raise our kids to take care of
us. And here you are preying on [the]
elderly and raising your kid, teaching her how to commit crimes against the
elderly. I mean, you’ve wrecked both
ends of the spectrum here, and you don’t care.
You just do it. It works.†On this record, the fact that defendant’s
crimes were not classified as violent or serious felonies does not place him
“outside the scheme’s spirit, in whole or in part.†(Williams, supra, 17 Cal.4th at p. 161.)
Defendant argues that the trial court “failed
to take into consideration†that he would have to serve a maximum 21-year
sentence even with the strike prior dismissed.
Not so. The record shows that the
court in fact considered that argument. Defendant
argued in his motion papers that “[a] 35-year sentence for nonviolent thefts .
. . may be justified†for fraud “on the scale of Madoff Investment Securities†but
“verge[d] on overkill†in this case. “[A]
21-year sentence ([the defense’s] calculation of the maximum term if the strike
is stricken) could hardly be characterized as ‘getting off easy,’ †defendant urged. His trial counsel made the same argument at
the hearing. We can conclude from the trial
court’s ruling that the court considered and
rejected the argument. And properly
so. As the probation report noted, three
prison terms and “countless†time in jails had not persuaded defendant to
change his criminal ways, and his “blatant refusal to comply with probation and
parole show[ed] his unwillingness to do whatever it takes to change.â€
Defendant’s reliance on People v. Garcia (1999) 20 Cal.4th 490 (Garcia) is misplaced. In Garcia, the court declared that “a defendant’s sentence
is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration
because the underlying purpose of striking prior conviction allegations
is the avoidance of unjust sentences.†(Id. at p. 500.) The court held that the trial court did not
abuse its discretion in striking one of Garcia’s two burglary priors. (Id.
at p. 503.) The sentence the court
imposed, 31 years and 4 months to life in prison, was “not lenient†and,
therefore, not “inconsistent with the purpose of the Three Strikes law.†(Ibid.)
Garcia is easily distinguished. Garcia’s
prior convictions “all arose from a single period of aberrant behavior for
which he served a single prison term.†(
He cooperated with police, his crimes were linked to his drug addiction,
and his criminal history did not include any actual violence. (Ibid.) These circumstances cumulatively indicated
that he could be “ ‘deemed outside
the [Three Strikes] scheme’s spirit,’ at least ‘in part,’ and that the trial
court acted within the limits of its section 1385 discretion. [Citation.]â€
(Ibid.)
The facts of this case are different. Defendant’s crimes, unlike Garcia’s, were not
attributable to “a single period of aberrant behavior for which he served a
single prison term.†Instead, they spanned
a 30-year period that included four prison terms and “countless†time in jails.
(Garcia,
supra, 20 Cal.4th at p. 503.) Here, unlike in Garcia, there was no evidence that defendant cooperated with police,
and only his own self-serving statement to the probation officer established that
he had “a gambling problem and an alcohol problem.†Garcia is
inapposite.
We agree with the trial court’s conclusion
that defendant “clearly fit the purpose of the three strikes law.†The denial of defendant’s
discretion. (Carmony, supra, 33
Cal.4th at pp. 376-377.) It follows that
there was no violation of defendant’s due process rights. (See In re Large (2007) 41 Cal.4th 538,
550.)
C.
Presentence Custody Credit
Asserting that he was “arrested in this
consolidated matter on March 4, 2008,†defendant claims
the trial court erred in failing to award him presentence custody credit for that
day. The Attorney General argues that “[t]he
argument has been forfeited because it was not raised in the trial court, where
the relevant facts could have been developed and evaluated.†She urges us to summarily dismiss defendant’s
claim.
Defendant did not forfeit the argument. “A sentence that fails to award legally
mandated custody credit is unauthorized and may be corrected whenever
discovered.†(People v. Taylor (2004) 119 Cal.App.4th 628, 647; see generally
763 [“well settled†that unauthorized sentence is “subject to judicial
correction whenever the error [comes] to the attention of the trial court or a
reviewing courtâ€], disapproved on another ground in People v. Fosselman
(1983) 33 Cal.3d 572, 583, fn. 1.) Nor
does section 1237.1 require us to summarily dismiss defendant’s claim. The rule requiring a defendant to move to
correct an award of presentence custody credit in the trial court before
raising the issue on appeal does not apply when the appeal raises multiple
issues. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428
& fn. 8.) We proceed, therefore, to the
merits of defendant’s claim.
Section 2900. 5 provides
that “[i]n all felony and misdemeanor convictions, . . . when the defendant has
been in custody, . . . all days of custody of the defendant . . . shall be
credited upon his or her term of imprisonment.†(§ 2900. 5, subd.
(a).) But “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. Credit shall be given only once for a single
period of custody attributable to multiple offenses for which a consecutive
sentence is imposed.†(§ 2900.
5, subd. (b).)
As the California Supreme Court has noted, “ ‘section 2900. 5,
subdivision (b), is “difficult to interpret and apply.†’ †(
(2003) 30 Cal.4th 14,
19 (Marquez).) Two high court cases, People v. Bruner
(1995) 9 Cal.4th 1178 (Bruner) and Marquez, inform our analysis here.
In Bruner, the court emphasized that
“[s]ection 2900. 5 is not intended to bestow the
windfall of duplicative credits against all terms or sentences that are
separately imposed in multiple proceedings.†(Bruner, supra,
9 Cal.4th at p. 1191.) Bruner was
sentenced to 12 months after his parole was revoked, and he “received full
credit against this term for the time spent in jail custody†between his arrest
and the parole revocation. (Id. at p. 1181.) While serving his 12-month sentence, Bruner
pleaded guilty to cocaine-possession charges in a new information and received
a concurrent 16-month sentence for that conviction. (Ibid.) The court held that he was not entitled to
duplicate credit against the new sentence. (Id. at p. 1183.) Although the presentence custody Bruner argued
should be credited was at least arguably “
‘attributable to proceedings related to the same conduct for which
[he] was convicted,’ †he had already
received credit for that time. A
rule of “ ‘strict causation’ †applies in such “ ‘multiple restraint’ †cases. (Bruner, at p. 1180.) “[W]here 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, at pp. 1193-1194.)
In Marquez, the court recognized an
exception to the strict causation rule in certain multiple restraint cases that
do not involve the possibility of duplicate credit. Marquez was arrested in Monterey County on
suspicion of first degree burglary and released on bail a few days later. (Marquez, supra,
30 Cal.4th at p. 17.) Two weeks later,
he was arrested in Santa Cruz County on suspicion of another burglary. (Ibid.) He remained in custody in Santa Cruz County, and Monterey County placed
a “hold†on him. (Ibid.) The Santa Cruz County case
was tried first; Marquez was convicted and sentenced to prison, with credit for
his time in custody between the date of his arrest in Santa Cruz County and
sentencing. (Id. at p. 18.) He was then transferred to Monterey County, and
convicted and sentenced in that case.
Marquez appealed both convictions. His sentence in the Santa Cruz County case
was ultimately vacated and the charges dismissed. (Marquez, supra,
30 Cal.4th at p. 18.) He then sought to have the time he spent in custody from
the day he was sentenced in the Santa Cruz County case to
the day he was sentenced in the Monterey County case
credited against his sentence in the Monterey County case. (Ibid.)
The high court held that the plain meaning of
section 2900. 5, subdivision (b) supported Marquez’s
claim, because the time for which he sought credit could properly be deemed “ ‘attributable to proceedings
related to the same conduct for which [he] ha[d] been convicted’ †in the Monterey County case. (Marquez, supra,
30 Cal.4th at p. 20.) The case was not a
duplicate credit case, the court emphasized. Unlike in Bruner, “the choice is not between awarding credit once or awarding it
twice. The choice is instead between
granting [Marquez] credit once for his time in custody between December 11, 1991, and April 2, 1992, or granting him no
credit at all for this period of local custody.†(Id. at p. 23.) To deny him that credit “would render this
period ‘dead time.’ †(Id. at p. 20.)
Applying these cases here, we conclude on the
record before us that defendant has not established his entitlement to custody
credit for March
4, 2008, since he 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.) His arrest on March 4, 2008, was attributable to two different cases—the first felony case and
the 2005 DUI case. Warrants had been
issued for his arrest in both cases in late 2007. He posted $30,000 bail in the felony case and
$5,000 bail in the DUI case. He appeared
on March 12,
2008, in both cases. The probation report reflects that the
probation violation in the DUI case was based not only on his arrest in the
felony case but also “based on failure to enroll in 1st offender DUI program.†Thus, his incarceration on March 4, 2008, was attributable to two independent grounds: the offenses charged in the felony complaint
and his failure to enroll in a first offender DUI program.
The probation department calculated
defendant’s custody credits in the DUI case and in the consolidated felony
cases. The calculation for the DUI case
shows one day’s credit for March 4, 2008.
credit in the felony cases. (
Defendant does not mention the DUI probation
revocation case, nor does he acknowledge that the probation report credits March 4, 2008, to that case. He states only
that he posted a $30,000 bail bond on March 4, 2008,
for his “release . . . from custody in [the felony case].†He does not mention the $5,000 bail that he
posted in the DUI probation revocation case.
On the record before us, we cannot conclude that
defendant’s incarceration on March 4, 2008, was entirely
“attributable to proceedings related to the same conduct for which the
defendant has been convicted.â€
(§ 2900.5, subd. (b); Bruner,
supra, 9 Cal.4th at p. 1191.) The evidence to the contrary was
uncontradicted. Because defendant’s criminal
sentence “may not be credited with jail or prison time attributable to a parole
or probation revocation that was based only
in part upon the same criminal episode,†and because he has not shown “that
the conduct which led to his conviction was the sole reason for his loss of
liberty†on March 4, 2008, he has failed to establish his entitlement to
custody credit, in the consolidated felony cases, for that day. (Bruner,
at pp. 1191, 1193-1194.) The trial court
properly awarded no custody credit in the consolidated case for March 4, 2008. (Ibid.)
On the sparse record before us, we cannot
determine whether defendant’s situation comes within the exception established
by Marquez. He was sentenced on October 12, 2011. His probation in the DUI
case was “revoked and terminated†that same day. The record on appeal contains virtually no
evidence about what happened in the DUI case between defendant’s March 4, 2008 arrest and his October 12, 2011
sentencing. It may be that this is not a
duplicative credits case and that, like Marquez, defendant received no credit at
all for time served on March 4, 2008. If that is the case, then the “ ‘dead time’ †might properly be credited to the consolidated felony
cases. (See Marquez, supra, 30
Cal.4th at p. 20.)
“The most expeditious and . . . appropriate
method of correction of errors of this kind is to move for correction in the
trial court.†(People v. Fares (1993) 16 Cal.App.4th 954, 958 (
“There is no time limitation upon the right to make the motion to
correct the sentence. ‘The . . . effect
of the court's failure to comply with [§ 2900.5, subd. (d)], [is] to render its
initial finding and resulting sentence a nullity. It follows that once appropriately apprised of
its inadvertence, the court therein [becomes] licensed to impose a proper
finding and sentence. [Citations.]’ [Citation.]
The court’s power to correct its judgment includes corrections required
not only by errors of fact (as in the mathematical calculation) but also by
errors of law.†(Fares, at p. 958; People v.
Shabazz (2003) 107 Cal.App.4th 1255, 1259 [“In the event defendant’s parole
was never revoked or he was denied any credits by the Board of Prison Terms, he
can seek a modification of the presentence credit order in superior
court.â€].) Therefore, if defendant can
make the proper showing, he is “free to file a motion in the trial court
requesting relief.†(
516, 519.)
III.
Disposition
The judgment is affirmed.
>
___________________________
Mihara,
J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Grover, J.
name="_ftn1" title="">[1] Subsequent statutory
references are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] The second case was eventually
dismissed as duplicative, and the remaining two cases (SS071574A and SS082394A)
were consolidated for trial, with SS082394A as the lead case. The revocation proceeding in the DUI case
(MS240748A) remained a separate matter trailing the felony cases.
