IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yuba
April 5, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GARY ALLEN DICKERSON, DEFENDANT AND APPELLANT.
Super. Ct. No. CRF08493
The opinion of the court was delivered by: Mauro J.
P. v. Dickerson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Gary Allen Dickerson pleaded no contest to assault with means likely to cause great bodily injury and the trial court placed him on three years felony probation. When defendant subsequently violated probation, the trial court sentenced him to four years in state prison but mistakenly awarded him "zero" presentence credits.
Defendant contends on appeal that, pursuant to his negotiated plea agreement, he is entitled to presentence custody credits for the days he spent incarcerated after his plea agreement and before sentencing. The People concede this point.
Defendant also contends that his conduct credits must be calculated pursuant to the rate specified in the amendments to Penal Code section 4019 effective January 25, 2010. We conclude that defendant is entitled to conduct credits calculated at the rate specified in the subsequent September 28, 2010, amendments to Penal Code section 2933.
A criminal complaint was filed against defendant in Yuba County Superior Court charging him with assault with a deadly weapon (count one), assault with means likely to cause great bodily injury (count two), battery (count three), and reckless driving (count four). Subsequently, defendant and the prosecution reached a conditional plea agreement pursuant to which defendant pled no contest to count two, a nonstrike offense, with the understanding that the sentence imposed would not include immediate confinement in state prison. Defendant also pled no contest to a misdemeanor driving under the influence charge in a separate case.
At a hearing on December 15, 2008, the court accepted the conditional plea agreement to which certain terms were added. Among the additional terms was the following credit waiver the prosecution had requested and negotiated with defense counsel:
"THE COURT: Do you also agree to waive any past or future custody credits that are accrued by you because of either enrollment in a residential rehab program or that you've accrued to date?
"THE COURT: Do you join, Counsel?
"[DEFENSE COUNSEL]: Yes, Your Honor."
The credit waiver included a relinquishment of (1) all past custody credits, i.e., all custody credits accrued as of the date of the accepted plea agreement (December 15, 2008), and (2) all future custody credits defendant accrued while enrolled in a residential rehabilitation program. After accepting the plea agreement, the court set the matter for sentencing and ordered the probation department to prepare a report outlining proposed conditions of probation.
Following the December 15, 2008, hearing, minutes were entered which, among other things, purported to summarize the credit waiver. The language in the minutes, however, deviated from the agreed-upon credit waiver. Although the minutes correctly stated that defendant waived all past credits and all future credits accrued while enrolled in a residential rehabilitation program, the minutes incorrectly stated that defendant also waived all future credits accrued while incarcerated.
At a sentencing hearing on January 12, 2009, the court placed defendant on felony probation for three years with a number of conditions, including that he serve one year in county jail and participate in a residential rehabilitation program. While covering the conditions of defendant's probation, which defendant accepted, the court incorrectly stated, "[Y]ou have waived all custody credits, past, present and future, in order to be able to try at this drug rehab program and be placed on probation." The court did not clarify that defendant's waiver of future custody credits applied only to the time he spent enrolled in the rehabilitation program. The court's mistake is likely attributable to the erroneous minute entry (discussed above) or the probation department's report outlining the proposed conditions of probation. This report incorrectly represented that defendant had "waived rights to all past and future custody credits." Defendant did not object to the probation report or to the trial court's statements.
Following the sentencing hearing, the court entered a probation order containing language which more closely tracked the agreed-upon credit waiver. The probation order stated that defendant "has waived all past, present and future time credits while in [a] residential program." Defendant and the court signed the probation order.
On August 19, 2009, the probation department filed a petition to revoke defendant's probation. The petition alleged that defendant violated his probation by being terminated from a rehabilitation program prior to its completion. Subsequently, the petition was amended to further allege that defendant violated his probation because he failed to obey all laws. The amended petition alleged that defendant received a petty theft conviction in Sutter County in November 2009.
On November 16, 2009, defendant admitted both probation violations. The court set the matter for sentencing and ordered the probation department to submit a supplemental report. Similar to its previous report, the probation department's supplemental report incorrectly stated that defendant had "waived all past and future custody credit both while incarcerated and while attending a residential treatment program."
At sentencing on December 21, 2009, the court denied probation. The court sentenced defendant to four years in state prison on count two and awarded defendant "zero" presentence credits for time served. Defendant did not object to the trial court's credit determination. This appeal followed.
Defendant and the People agree that defendant's plea agreement did not waive his right to future custody credits accrued while incarcerated. Defendant and the People further agree that defendant served time in county jail after his plea agreement and before his sentencing on December 21, 2009, and that he is entitled to custody credits for that time.
A plea agreement "'is a tripartite agreement which requires the consent of the defendant, the People and the court.'" (People v. Feyrer (2010) 48 Cal.4th 426, 436.) "Acceptance of the agreement binds the court and the parties to the agreement." (People v. Segura (2008) 44 Cal.4th 921, 930.) "The trial court's approval of the agreement binds the court to the terms of the plea bargain, and the defendant's sentence must be within the negotiated terms." (People v. Martin (2010) 51 Cal.4th 75, 79.)
The operative plea agreement included a waiver of all past custody credits and a waiver of all future custody credits accrued by defendant in a rehabilitation program. The plea agreement did not include a waiver of future custody credits accrued while defendant was incarcerated. Accordingly, the trial court erred when it deviated from the terms of the plea agreement to which it was bound and awarded defendant "zero" presentence custody credits for the days he spent incarcerated after his plea agreement and before sentencing.
Both defendant and the People recognize that defendant did not object to the award of "zero" credits at sentencing. They both agree, however, that the failure to object does not result in a forfeiture of the issue. Again, we concur.
The award of "zero" credits exceeded the scope of the plea agreement's credit waiver and resulted in an unauthorized sentence. As such, the error may be raised for the first time on appeal. (See People v. Guillen (1994) 25 Cal.App.4th 756, 764; People v. Acosta (1996) 48 Cal.App.4th 411, 427; People v. Duran (1998) 67 Cal.App.4th 267, 270.) In addition, although "a defendant may acquiesce in punishment that exceeds the agreed terms of his plea, . . . his failure to object will not constitute acquiescence if the court taking his plea fails to comply with [Penal Code] section 1192.5." (People v. Knox (2004) 123 Cal.App.4th 1453, 1459, citing People v. Walker (1991) 54 Cal.3d 1013, 1025.) As the People note, prior to awarding "zero" credits, the court did not advise defendant of his right under Penal Code section 1192.5 to withdraw his plea should the court impose a sentence other than that called for in his plea agreement. Therefore, defendant's failure to object that the sentence imposed ("zero" credits) exceeded the terms of his plea agreement does not constitute a forfeiture of the issue. (Knox, supra, 123 Cal.App.4th at pp. 1459-1460; People v. Lopez (1998) 66 Cal.App.4th 615, 635, fn.13.)
Defendant is entitled to custody credits for the days he spent incarcerated after his plea agreement (December 15, 2008) and before sentencing (December 21, 2009). According to the supplemental probation report, it appears defendant spent 92 days in county jail during this time. Therefore, we remand with instructions to the trial court to amend the judgment to award defendant these custody credits.*fn1 Because we agree with defendant that he is entitled to custody credits for the days he spent incarcerated after his plea agreement and before sentencing, we do not address his alternative argument that the failure to award these credits violated his federal due process rights.
Defendant also contends that, with respect to the days he spent incarcerated after his plea agreement and before sentencing, he is entitled to conduct credits calculated pursuant to the rate specified in the amendments to Penal Code section 4019 effective January 25, 2010. The People disagree and argue that these amendments do not apply retroactively.
We have previously determined that the amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to appeals pending as of that date. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)
However, on September 28, 2010, the Legislature enacted Senate Bill No. 76, which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective upon enactment, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the January 25, 2010, version of Penal Code section 4019, when a prisoner served an odd number of days in presentence custody. Senate Bill No. 76 also eliminated the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (See Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1; Pen. Code, § 4019, former subd. (e), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
The amendments to Penal Code section 2933 effective September 28, 2010, which now supersede the Penal Code section 4019 amendments effective January 25, 2010, do not state they are to be applied prospectively only. We conclude that the rate now provided in Penal Code section 2933 applies retroactively to defendant's appeal, which remained pending as of September 28, 2010.
As defendant does not have a present or prior conviction for a "serious" or "violent" felony and is not subject to registration as a sex offender, he is entitled to the presentence conduct credits calculated pursuant to the rate now provided for in Penal Code section 2933, subdivision (e). (Pen. Code, § 2933, subd. (e)(1) & (3), added by Stats. 2010, ch. 426, § 1.) Defendant, having served 92 days in county jail after his plea agreement and before sentencing, is entitled to 92 days of conduct credit.
We remand with instructions to the trial court to amend the judgment to award defendant the presentence custody and conduct credits that he accrued while incarcerated after his plea agreement (December 15, 2008) and before sentencing (December 21, 2009). As amended, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: NICHOLSONActing P.J. BUTZ J.