IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yolo
February 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PABLO MARTINEZ, DEFENDANT AND APPELLANT.
Super. Ct. No. CRF094392
P. v. Martinez CA3
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case concerns presentence custody credits. The trial court awarded defendant Pablo Martinez 410 days of credit against his six-year sentence for being a felon in possession of a firearm. Just after the court pronounced sentence, the People stated there may have been an error in the credits calculation because 219 days were "associated with what was deemed a parole violation." The court ordered "simultaneous brief[ing]" on the issue. After the parties filed their briefs, the court stated it would take the issue under submission and rule within seven days, specifically rejecting defendant's request to be present for the ruling. In a written ruling, the court reduced defendant's credits by the 219 days defendant spent in the custody of the California Department of Corrections and Rehabilitation because "[t]he 'but for' strict causation test indicates the defendant would not be free from custody but for the new law violation, as there was an independent basis for custody in that he was in violation of his parole in being a parolee at large."
Defendant appeals this ruling, contending the court based its ruling on insufficient evidence and he had a right to be present when the credits ruling was issued. Finding no merit in these contentions, we affirm.
Sufficient Evidence Supported The Denial Of 219 Days Of Credit
Defendant contends the People "failed to demonstrate that [his] parole was revoked because he absconded" and even if they had, there had been "no final adjudication of the basis for [his] parole revocation because he gave a conditional waiver [truncating the parole revocation hearing]."
Presentence "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." (Pen. Code, § 2900.5, subd. (b).) 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." (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.)
Here, there was sufficient evidence in the form of memoranda from the probation officer, defense counsel, and the prosecutor supporting the denial of the 219 days of credit, all of which the court properly relied on when making its ruling. (See Williams v. New York (1949) 337 U.S. 241, 247 [93 L.Ed. 1337, 1342] [the "requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial" does not apply at sentencing hearings]; People v. Valdivia (1960) 182 Cal.App.2d 145, 148 [the Penal Code "contemplates the inclusion of hearsay matter in the probation officer's report"].)
In denying defendant credit for the 219 days, the court referred to a May 2010 memorandum from the probation officer that indicated "the basis for defendant's custody was a violation of his parole by being a parolee at large." That memorandum stated "defendant would not be free from custody but for the new law violation, as there was an independent basis for custody in that he was in violation of his parole in being a parolee at large."
The source of that information was briefs filed by defense counsel and the prosecutor. Defense counsel's brief stated defendant "was in custody for a new criminal case as well as a parole hold. The basis' [sic] for the parole hold was the charges in the above entitled case as well as being a parolee at large." The prosecutor's brief stated "[d]efendant was on parole," "[h]is parole was revoked for multiple reasons," "[s]ome of those reasons are the same criminal offenses at issue now. One of those was not" i.e., that he "absconded parole supervision." While defendant "signed an optional waiver truncating the [parole revocation] hearing" "pending resolution of the criminal prosecution, after which [he] may request a revocation hearing again," that "does not nullify" that "[a]bsconding is a basis for revocation that is unrelated to the criminal offense at issue in this case. Defendant would have had parole revoked even if he had not committed the instant criminal offense." The evidence contained in these reports was a sufficient basis on which to deny defendant credit because they show defendant's conduct underlying the term to be credited was not the but for cause of his restraint.
Defendant claims since his waiver was conditional and temporary, we cannot "speculate . . . that a defendant whose parole has been revoked while he awaits trial on new charges would have been ordered confined by the board on the basis of charges other than those leading to conviction." (In re Atiles (1983) 33 Cal.3d 805, 811.) Atiles is distinguishable because in that case the same criminal conduct resulted both in revoking parole and filing new charges. (Id. at pp. 807-808.) Here, defendant's custody could have had a basis unrelated to the new charges, i.e., his absconding on parole, but the defendant failed to prove otherwise. (In re Joyner (1989) 48 Cal.3d. 487, 493.)
The Court Did Not Err By Issuing The Written
Credits Ruling Outside Defendant's Presence
Defendant contends the court erred by issuing the credits ruling outside his presence. The problem with defendant's argument is that defendant was present in court during the proceedings regarding credits, and he has not established he somehow had a right also to be present in court when the court issued its written ruling on the previously submitted matter.
Defendant was at the hearing where the court received evidence and heard argument on the credits issue. He had a full and fair opportunity to litigate this issue. The cases he cites do not stand for the proposition he had a right to be present when the court issued its written ruling. (See, e.g., Snyder v. Massachusetts (1934) 291 U.S. 97, 108-110 [78 L.Ed. 674, 679-680] [no denial of due process where the defendant was not present when jurors viewed the crime scene]; United States v. Gagnon (1985) 470 U.S. 522, 526 [84 L.Ed.2d 486, 490] [no denial of due process where the judge had an in camera discussion with a juror]; La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 707-708 ["a criminal defendant does not have a fundamental right to be present at all stages of the trial. The court, however, has never addressed whether readback of testimony to a jury is a 'critical stage of the trial' triggering a criminal defendant's fundamental right to be present"].)
The judgment is affirmed.
HULL , Acting P.J.
© 1992-2011 VersusLaw Inc.