IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
April 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JESUS MANUEL FARIAS, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CM024123 & CM025769)
The opinion of the court was delivered by: Mauro, J.
P. v. Farias
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jesus Manuel Farias pleaded no contest in an initial case to assault with a deadly weapon. Then, after he failed to appear for sentencing while out on bail, a second case was filed and he pleaded no contest to failure to appear. The trial court sentenced defendant in the first case to three years in prison for assault with a deadly weapon, and in the second case to a consecutive eight months for failure to appear. The trial court also awarded presentence custody credit in each case and imposed various fines and fees.
Defendant contends on appeal that (1) the trial court erred in allocating his presentence custody credit between his first and second offenses, rather than applying them to his aggregate term of three years eight months, (2) the court facilities assessment imposed under Government Code section 70373 must be stricken because it violated the constitutional prohibition against ex post facto laws, and (3) defendant is entitled to additional presentence custody credit under Penal Code section 4019.*fn1
We conclude that (1) the trial court properly allocated the presentence custody credit between cases, because the presentence custody was attributable to different crimes charged in different cases; (2) this court has previously rejected the contention that the court facilities assessment violates the constitutional prohibition against ex post facto laws; and (3) defendant is not entitled to additional presentence custody credit because he was convicted of a serious felony. We will affirm the judgment.
According to the probation report in case No. CM024123, on September 11, 2004, after a series of confrontations between two groups with possible rival gang affiliations, defendant fired shots at victim Johnny Savangsy, injuring him.
On February 8, 2006, defendant was charged in case No. CM024123 with assault with a deadly weapon by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) It was further alleged that he used a firearm in the commission of the offense (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and that he personally inflicted great bodily injury on the victim, who was not an accomplice (§ 12022.7, subd. (a)), making the offense both a serious felony and a violent felony. (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).)
On May 24, 2006, defendant pleaded no contest to the assault charge; in return, the trial court struck the allegation that the offense involved the use of force likely to produce great bodily injury and dismissed the remaining allegations. While awaiting sentencing and the completion of a probation report, defendant was released on bail and ordered to appear for sentencing on September 13, 2006.
Defendant did not appear for sentencing on September 13, 2006. A new complaint was filed on September 22, 2006, bearing case No. CM025769, charging defendant with failure to appear while on bail (§ 1320.5), and an arrest warrant was issued. The warrant was served on defendant on January 5, 2010.
On January 26, 2010, defendant pleaded no contest to failure to appear. The trial court ordered defendant held in custody without bail as to both cases until the time of sentencing.
On March 23, 2010, the trial court denied probation and sentenced defendant to the middle term of three years in case No. CM024123 and eight months consecutive in case No. CM025769. The court awarded 8 days of presentence custody credit in case No. CM024123 (6 days of actual custody and 2 days of conduct credit) and 116 days of presentence custody credit in case No. CM025769 (78 days of actual custody and 38 days of conduct credit). The court also ordered various fines and fees, including a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)) in case No. CM025769.
After defendant's sentencing, his appellate counsel filed a motion in the trial court for correction of presentence custody credit, arguing that the trial court should have applied the credit to his aggregate term rather than allocating them between the separate terms for his offenses. (§ 1237.1.) The trial court denied the motion.
Defendant contends that the trial court erroneously applied his custody credit separately to the cases that formed the component terms of his consecutive sentence, rather than to his aggregate term of imprisonment. According to defendant, had the court correctly applied his credit to the aggregate term, he would have been entitled to a total award of 168 days of presentence custody credit (84 days of actual custody and 84 days of conduct credit).*fn2 We conclude the trial court's allocation of credit was proper under these circumstances.
Section 2900.5 sets out the general rules for awarding presentence custody credit. Subdivision (b) of that section (section 2900.5(b)) provides: "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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed."
Under section 2900.5(b), "[i]n the case of multiple proceedings leading to terms which are consolidated by the last sentencing court pursuant to section 669, the 'attributable' limitation still applies. . . . [C]redits are not reallocated: they remain assigned only to the proceedings in which they were earned." (People v. Adrian (1987) 191 Cal.App.3d 868, 877; accord, People v. Lacebal (1991) 233 Cal.App.3d 1061, 1064-1066; see People v. Riolo (1983) 33 Cal.3d 223, 227-229.)
"[A] period of time previously credited against a sentence for unrelated offenses cannot be deemed 'attributable to proceedings' resulting in a later-imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence." (In re Joyner (1989) 48 Cal.3d 487, 489; accord, People v. Bruner (1995) 9 Cal.4th 1178, 1180.)
Thus, if a defendant is sentenced to consecutive terms arising out of two or more discrete cases, the sentencing court may not lump the total credit assignable from the different proceedings together and apply that total to the defendant's aggregate term, but must allocate the credit to the terms stemming from the separate proceedings in which the credit was accrued, as the trial court did here. (People v. Lacebal, supra, 233 Cal.App.3d at pp. 1064-1066; People v. Brown (1984) 156 Cal.App.3d 1131, 1133-1136.)
Defendant does not argue in his opening brief that the custody to be credited in case No. CM025679 (failure to appear) is "attributable to proceedings related to" the conduct for which he was convicted in case No. CM024123 (assault with a deadly weapon) within the meaning of section 2900.5(b). Such an argument would not be tenable under the "strict causation" test of In re Joyner, supra, 48 Cal.3d at page 489, and People v. Bruner, supra, 9 Cal.4th at page 1180. Moreover, the fact that defendant was held without bail on both offenses after his arrest for failure to appear does not alter the analysis. Section 2900.5(b) provides that credit shall be given only once for time in custody attributable to both offenses.
Defendant's opening brief instead focuses on section 1170.1, subdivision (a), and case law construing that provision. Section 1170.1, subdivision (a) requires the trial court, when sentencing a defendant to consecutive terms, to pronounce a single aggregate term equaling the sum of all terms imposed for specific offenses and enhancements. Reading that provision together with section 2900.5, subdivision (a), which requires the court to apply presentence custody credit against the defendant's "term of imprisonment," defendant asserts that only the aggregate term may be used to perform this calculation under these circumstances where defendant received consecutive sentences in two separate cases arising from different crimes. But defendant does not cite cases that support his argument. Although defendant cites In re Reeves (2005) 35 Cal.4th 765, that case involved the ability to earn worktime credit against a concurrent sentence for a nonviolent offense under section 2933.1, circumstances not involved in this case.
Defendant has not established that the trial court erred in its allocation of his presentence custody credit.
Defendant next contends that the trial court could not properly impose a $30 court facilities assessment pursuant to Government Code section 70373, subdivision (a).*fn3 He claims that the assessment violated his protection against ex post facto laws.
As defendant acknowledges, this court has already rejected this contention. (People v. Castillo (2010) 182 Cal.App.4th 1410 (Castillo); accord, People v. Lopez (2010) 188 Cal.App.4th 474; People v. Phillips (2010) 186 Cal.App.4th 475; People v. Davis (2010) 185 Cal.App.4th 998.) Defendant cites no contrary authority. Because we believe Castillo was correctly decided, we reject defendant's claim.
In addition, defendant asserts for the first time in his reply brief that he is entitled to additional presentence custody credit under the amendments to section 4019 which took effect on January 25, 2010. Although this contention was not raised in his opening brief, we deem this issue to be raised on appeal. (See Misc. Order 2010-002.) However, because defendant was convicted of a serious felony (assault with a deadly weapon), the amendments to sections 2933 and 4019 do not assist him. (§§ 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50]; 2933,
subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010]; 1192.7, subd. (c)(31).)
The judgment is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.