IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
December 27, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DARREN ANDREW RANDALL, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 09CR15677, 09CR15706, 03CR4683)
The opinion of the court was delivered by: Robie , J.
P. v. Randall
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Darren Andrew Randall appeals presentence custody credits (Pen. Code,*fn1 § 2900.5) following his plea and sentencing in three separate cases settled at the same time: (1) a 2003 possession of methamphetamine; (2) a 2009 false imprisonment, which also constituted a probation violation on his 2003 drug offense; and (3) a 2009 gun possession by a felon. Defendant contends the trial court erred in failing to give him equal presentence credits in each of the three cases, for which he received concurrent sentences in a single proceeding. The People disagree and instead ask for: (1) reduction of defendant's credits due to a calculation error; and (2) imposition of additional fines and fees. We conclude defendant is not entitled to additional credits, and we remand for the trial court to make the necessary finding to forego discretionary fines/fees, impose mandatory fines/fees, and correct a calculation error regarding credits as requested by the People.
In trial court case No. 03CR4683 (the 2003 drug case), defendant pled guilty to possessing a controlled substance in 2003. Defendant received Proposition 36 probation and five days' credit for time served.
Defendant violated probation several times, resulting in the trial court ordering defendant to serve 174 days in county jail and awarding him 174 days of presentence credit (116 actual days under section 2900.5, plus 58 conduct credits under section 4019).*fn2
On June 24, 2009, defendant was arrested for false imprisonment of his child's mother by violence and corporal injury to a cohabitant. On June 25, 2009, the People filed a petition to revoke probation in the 2003 drug case based on this alleged misconduct.
On June 26, 2009, in trial court case No. 09CR15677 (the 2009 false imprisonment case), defendant was charged with false imprisonment of his child's mother by force. The charge of inflicting corporal injury on his child's mother was later dismissed.
On July 9, 2009, in trial court case No. 09CR15706 (the 2009 gun case), the prosecution charged defendant with possession of a firearm by a felon and possession of ammunition (which was dismissed). Law enforcement officers learned about the gun when defendant telephoned his mother from jail (on the false imprisonment charge) and asked for his father to remove the gun from defendant's room. The pleading alleged the gun offense occurred on June 25, 2009 (the last day defendant was free from custody before his June 26 arrest for false imprisonment). Defendant was remanded July 9, 2009. The complaint was deemed an information on August 7, 2009.
On August 25, 2009, the prosecutor moved to consolidate the two 2009 cases for trial, but the record shows no ruling.
On September 17, 2009, the trial court resolved all three cases pursuant to a plea, in what the People describe as a global resolution and joint sentencing. For the 2003 drug case, defendant admitted he violated probation by falsely imprisoning his child's mother. For the 2009 false imprisonment case, defendant pled guilty in exchange for a stipulated disposition of the low term of 16 months in prison, to run concurrently with the 2009 gun case. A charge of inflicting corporal injury was dismissed. For the 2009 gun case, the trial court accepted defendant's "West plea" (People v. West (1970) 3 Cal.3d 595 [a guilty plea unaccompanied by a factual admission]) for a stipulated disposition of the low term of 16 months in prison.
On October 22, 2009, the trial court sentenced defendant as follows:
In the 2009 gun case, the court sentenced defendant to the low term of 16 months and awarded defendant 170 days' credit for time served (114 actual days plus 56 conduct credits).
In the 2003 drug case, the court sentenced defendant to the low term of 16 months, to run concurrently with the sentence in the false imprisonment case. The court awarded 175 days' credit in the drug case (117 actual days plus 58 conduct credits).
In the 2009 false imprisonment case, the court sentenced defendant to the low term of 16 months in prison, to run concurrently with the sentence in the gun case. The court did not award any credit for time served in the false imprisonment case.
The trial court issued an initial abstract of judgment for the three cases on October 27, 2009.
On November 12, 2009, defendant filed an appeal in the drug case and the false imprisonment case and obtained a certificate of probable cause.
On December 14, 2009, the trial court issued an amended abstract of judgment to show the sentences were to be served concurrently.
On December 21, 2009, defendant filed an appeal in the gun case, based on the sentence or matters occurring after the plea. We assigned the same case number to both appeals.
In March 2010, while the appeal was pending in this court, defendant filed in the trial court an ex parte motion to increase presentence custody credits on all three cases in accordance with the January 2010 amendment of section 4019. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
A minute order dated March 25, 2010, said the trial court had no jurisdiction and defendant's remedy was to file a writ.
On March 30, 2010, the trial court issued a second amended abstract of judgment, increasing the credits pursuant to the section 4019 amendment, to 228 on the gun case (114 actual plus 114 conduct credits) and 233 on the drug case (117 actual plus 116 conduct credits), while leaving the false imprisonment case with no credits.
In May 2010, while this appeal was pending, defendant filed an ex parte motion in the trial court, arguing he was entitled to presentence custody credits against all three offenses because they were sentenced in a single proceeding where concurrent sentences were imposed. On May 20, 2010, the trial court signed an order denying the request and stating:
"Where a period of presentence custody stems from multiple, unrelated acts 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 terms to be credited was also a 'but for' cause of the earlier restraint. (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194; see also People v. Davis (1986) 187 Cal.App.3d 1250 (noting that if the defendant cannot demonstrate that he would be free, but for the second case, credits will apply to the first term only and the second term must be served in full).)
"In this instance, the defendant was in custody as a result of multiple, unrelated acts of misconduct and the defendant cannot demonstrate that 'but for' the second case, he would have been free. As such, the motion is denied."
I Presentence Credits
Defendant argues he is entitled to equal presentence credits of 233 days (117 actual custody and 116 conduct credits) on each of three concurrent sentences, required by statute and/or his constitutional right to enforce his contractual plea. We disagree.
Section 2900.5 states that all days defendant spends in custody "shall be credited upon his or her term of imprisonment," but subdivision (b) states: "For the purposes of this section, 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 statute prohibits multiple credit for consecutive sentences (§ 2900.5, subd. (b) ["Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentences is imposed"]), but says nothing about concurrent sentences.
The general rule is that when concurrent sentences are imposed at same time, custody is credited against each case. (People v. Bruner, supra, 9 Cal.4th at p. 1192, fn. 9.) However, where presentence custody stems from multiple unrelated incidents, custody may not be credited against more than one case unless each case is a "but for" cause of the incarceration. (In re Marquez (2003) 30 Cal.4th 14, 21; In re Rojas (1979) 23 Cal.3d 152, 156.) "If an offender is in pretrial detention awaiting trial for two unrelated crimes, he ordinarily may receive credit for such custody against only one eventual sentence. Once the pretrial custody is credited against the sentence of one of the crimes, it, in effect, becomes part of the sentence . . . . In such circumstances, the pretrial custody ceases to be 'attributable' to the second crime, thus prohibiting its being credited against the sentence subsequently imposed for that crime. [Citation.]" (Marquez, at p. 21.)
Defendant relies on authority that an exception to the rule of causation applies where the defendant was sentenced to concurrent sentences in a single proceeding. (People v. Adrian (1987) 191 Cal.App.3d 868; People v. Schuler (1977) 76 Cal.App.3d 324.)
However, defendant offers no analysis of the cited cases, which are distinguishable. In People v. Adrian, supra, 191 Cal.App.3d at page 868, the trial court in a revocation of probation proceedings denied credit for days spent in jail on a separate misdemeanor offense and later in prison after revocation of parole on an earlier assault. (Id. at pp. 870-871.) While on parole from the assault and on probation from the subject drug offense, the defendant committed a misdemeanor, for which he was given probation conditioned on some jail time. After the defendant was returned to prison for a second parole violation on the assault, his drug probation was revoked because of his commission of the unrelated misdemeanor. He then received a prison sentence on the drug offense, to be served concurrently with that on the parole revocation. (Ibid.) The appellate court held the misdemeanor offense was unrelated to the drug offense that was the subject of the probation revocation, and therefore any time served for it was not to be credited against the prison term imposed when probation was revoked. (Id. at pp. 872-885.) The appellate court further held the section 2900.5 credit applied only to pretrial detention, not to time served on a term imposed upon conviction, and thus dual credits could not be earned for time spent in custody serving a term while awaiting trial on another charge. (Adrian, at pp. 872-885.) Adrian is inapposite to our case, which involves a plea to three separate cases.
In People v. Schuler, supra, 76 Cal.App.3d at page 324, the defendant pled guilty on retrial to four charges that had previously been dismissed following his first trial in which he pled guilty to two of eleven separate felony offenses. (Id. at pp. 328-329.) The defendant had served 785 days in prison pursuant to his first convictions which were later found to be constitutionally invalid. The defendant received no credit for the time spent in prison on the two charges that were subsequently dismissed as part of the second plea bargain. (Ibid.) The appellate court held the defendant was entitled to that credit, although the second plea to four counts involved neither of the two offenses to which he previously pleaded guilty. (Id. at pp. 329-332.) The appellate court rejected the People's argument that the 785 days in prison were attributable to offenses which had since been dismissed and therefore could not be attributable to offenses of the most recent conviction. (Id. at p. 330.) Schuler stands for the proposition that, where a defendant is charged with a number of offenses, enters into a plea bargain that is set aside for unconstitutionality in the taking of the plea, and then enters into a second plea bargain involving the same charges, he is entitled under section 2900.5 to credit for time spent in prison pursuant to the first plea bargain, even though the precise counts to which he pled guilty in each bargain were not the same. (Schuler, at pp. 329-332.) Schuler has no bearing on the case before us.
The People agree the exception to the rule of causation applies when multiple crimes are prosecuted in a single proceeding and concurrent sentences are imposed. In that instance, presentence custody credits are applied to all of the concurrent sentences, even though the presentence custody is not solely attributable to the crime for which the credit is given. (People v. Adrian, supra, 191 Cal.App.3d at p. 876.)
Here, however, although the sentencing hearings in the three separate cases were combined, they were still three separate cases and were treated as such by the trial court. The hearing was not a sentencing hearing on multiple convictions prosecuted in a single criminal action in which the sentencing court crafts a global sentence with full knowledge that concurrent sentences call for duplicate credits.
The trial court proceeded under the assumption that presentence custody credit (for the time spent in jail after the false imprisonment charge) would be attributable to only one of the two cases. (The credit for the drug offense was for jail time served before the false imprisonment charge.) The defense questioned the credits. The reporter's transcript shows defendant said at the sentencing hearing, "I got 175 days credit for time served, but they only want to give me 170." Defense counsel asked if the credits were correct and said defendant was having trouble understanding "why the 175 is not actually 170 for a total of 340." The trial court said: "He has 170 in [the gun case] because he was arrested in that case on 6-25-09 and incarcerated for 85 days. 9-24-09 to 10-22, another 29 days. That's a total of 114 actual, 56 days good time/work time. That's 170. [¶] The next case, the [false imprisonment], you don't get dual credits, for starters. . . . [¶] . . . [¶] [T]here's no credits because they went on the case in which he's going to prison." The prosecutor interjected that defendant was arrested on a probation violation, and she (the prosecutor) could have put the 170 days all on the 2003 drug case, and he would be going to prison with no credits. The trial court said: "I understand. And, then, in the [drug case], he has 175 days credit on that case. He's not entitled to dual credits. They only go to one case. You can't just lump them all on one case. You got different time frames. He has 117 days credit, 58 good time/work time for 175 days. It's a different space of time." Defendant said, "I thought I pled to a violation of probation on that and I would have gotten them." Defense counsel stated the defense was ready to proceed with sentencing.
Additionally, as indicated, the trial court later issued an order on defendant's ex parte motion while this appeal was pending, reiterating the trial court's view that defendant should not receive the additional credits.
In these circumstances, we decline to revise the trial court's sentencing to conform to a result that might have been appropriate had the trial court conducted a hearing different than the one actually conducted.
Defendant's reply brief argues the People cite no authority that combining three cases into a global disposition with one sentencing hearing does not amount to a "single proceeding," and any ambiguity in the law must be construed in favor of the defense. However, while section 2900.5 is difficult to interpret and apply (People v. Adrian, supra, 191 Cal.App.3d at pp. 874-875), there is no ambiguity here requiring construction in defendant's favor. We conclude defendant is not entitled to equal credits on all counts.
As to defendant's argument that he has a constitutional due process right to specific enforcement of his negotiated disposition, he fails to show any violation of the negotiated disposition.
Plea agreements are essential and desirable to the administration of justice. (People v. Masloski (2001) 25 Cal.4th 1212, 1216.) Under section 1192.5, if a trial court accepts a negotiated plea agreement, the defendant cannot be sentenced on the plea to a punishment more severe that that specified in the plea. (Masloski, at p. 1217.) Due process is violated where a promise for a defendant's plea is not fulfilled. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) The defendant's right to the benefit of his bargain is not forfeited by mere failure to object at sentencing. (Id. at p. 1025.)
Defendant says that before his plea, he was promised that each of his pleas and admissions would result in no additional time in prison. The trial court told him his sentence would be "sixteen months total in the California Department of Corrections to run fully concurrent to the first case which means no additional time. The sixteen months is sixteen months."
Defendant fails to persuade us that this promise was unfulfilled. Significantly, the trial court did not promise to apply credits to each of the three cases.
We conclude defendant is not entitled to additional credits. We observe the trial court already gave defendant the increased credits of the January 25, 2010, amendment to section 4019. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) While this appeal was pending the Legislature again amended section 4019, effective September 28, 2010, but expressly stated the amendment applies only to crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426.)
II Correction To Judgment
The People in their respondent's brief point out a calculation error by the probation department, adopted by the trial court, on the number of days in custody. They ask us to correct the judgment. They also seek remand for proper imposition of fines and fees. They note the trial court erred in stating it was "running all these fines fully concurrent . . . . That means you pay no additional money." Defendant makes no reply to these points.
The People may obtain correction of an unauthorized sentence on appeal even though they did not object in the trial court if the issue presents a question of law. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)
We agree with the People that imposing concurrent fines and fees has the same effect as imposing them in only one case, which was improper. (People v. Schoeb (2005) 132 Cal.App.4th 861, 864-865 [nothing in the fine/fee statutes prohibit multiple fines/fees in separate cases disposed of at a single sentencing hearing]; People v. Enos (2005) 128 Cal.App.4th 1046, 1049 [same].) With the exception of the restitution fine (§ 1202.4), which the court may decline to impose if it finds an extraordinary reason for not doing so, the fines and fees are mandatory. (Gov. Code, § 70373, subd. (a)(1) [criminal conviction fee]; § 1202.45 [parole revocation fine].) The mandatory fines/fees should have been separately imposed on the separate cases.
Because we must remand for the trial court to make a finding of an extraordinary reason not to impose the discretionary fee (if it chooses to do so), we will leave it to the trial court to make the other corrections, i.e., imposing the mandatory fines/fees on each case and correcting the calculation error in the credits.
The judgment is affirmed, except that the case is remanded to the trial court with directions: (1) to make the necessary finding to forego discretionary fines/fees; (2) impose mandatory fines/fees; (3) correct a calculation error regarding credits as requested by the People; and (4) to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. HULL , J.