IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
October 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSE DAVID RAMOS, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM029271)
The opinion of the court was delivered by: Hull J.
P. v. Ramos 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jose David Ramos entered a plea of no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2) and admitted an on-bail enhancement (Pen. Code, § 12022.1) in exchange for dismissal of the remaining counts.
The trial court sentenced defendant to state prison for an aggregate term of three years, that is, the upper term for the possession offense, and a stayed two-year term for the enhancement, to be served concurrent to the sentence defendant was serving. The court awarded 54 actual days and 54 conduct days for a total of 108 days of presentence custody credit.
Defendant appeals. He contends the sentence must be vacated and the matter remanded for a new sentencing hearing because the trial court erroneously assumed that it was bound by a Stanislaus County judgment which ordered that the sentence in that case was to run concurrent to the sentence in the present case. Defendant also contends that defense counsel was ineffective for failing to request consecutive sentencing which would have resulted in a substantially shorter aggregate prison sentence. We affirm the judgment.
FACTS AND PROCEEDINGS
On March 12, 2008, defendant was arrested on drug charges in the current case. The next day, he was released from jail. On August 7, 2008, defendant entered his plea. On October 2, 2008, defendant failed to appear for sentencing. His bail was forfeited and a no-bail bench warrant was issued for his arrest.
On July 25, 2009, defendant was arrested for transportation of methamphetamine in Stanislaus County. That same day, Butte County's no-bail hold was placed on defendant's custody status.
On February 1, 2010, the district attorney requested and the trial court signed an Order for Production of Prisoner and Return from Stanislaus County Jail.
On June 8, 2010, on the Stanislaus County charge, defendant entered a no-contest plea to transportation of a controlled substance and was sentenced to state prison for three years with presentence custody credit from July 25, 2009, to June 8, 2010. Stanislaus County ordered that the sentence run concurrent to the yet-to-be-determined sentence in the present case.
On July 20, 2010, the trial court signed an Order for Production of Prisoner and Return from the California Department of Corrections and Rehabilitation.
On August 10, 2010, defendant was transported from state prison to Butte County jail for the current case.
On September 30, 2010, the court sentenced defendant to state prison
for the upper term of three years for the possession offense. With
respect to the Stanislaus County sentence, the record reflects the
"The Court: . . . And the order from Stanislaus County was for
their case to run concurrent with Butte County Case Number CM029271
[the present case], which means we don't resentence at all on that
Stanislaus County case. [¶] Is that both Counsel's understanding as
"[Defense counsel]: Correct."
With respect to presentence custody credit, the following
"[Defense counsel]: Your Honor, I note on the abstract of judgment
we received from Stanislaus County it appears that he has 318 days of
local conduct credits and 319 days of actual local time for a total
[of] 637 days. It appears to me that there was also a detainer in
this case on that time, so I think he would be entitled to credit on
both for that time against both concurrent sentences.
"The Court: Mr. Smith [the probation officer]?
"Probation: I disagree with [defense counsel]. I was surprised the defendant was given as much credit as he was. Normally concurrent sentences don't start running until day of sentence, and if the defendant's in custody on another case you've got concurrent sentencing. You have an issue People versus In Re: Joiner [sic] that would normally preclude the defendant from receiving credit.
"The Court: Mr. Noel [the prosecutor]?
"Mr. Noel: I'll defer to Mr. Smith on this one.
"The Court: Credit will be ordered as recited by Probation Officer Smith."
The court awarded 54 actual days and 54 conduct days for a total of 108 days of presentence custody credit.
We note that the general rule is that custody credit is awarded against each case when concurrent sentences are imposed at the same time. (People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9.) However, "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 for 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.]" (In re Marquez (2003) 30 Cal.4th 14, 21.)
Penal Code section 669 provides, in relevant part, as
"When any person is convicted of two or more crimes, whether in the
same proceeding or court or in different proceedings or courts, and
whether by judgment rendered by the same judge or by different judges,
the second or other subsequent judgment upon which sentence is ordered
to be executed shall direct whether the terms of imprisonment or any
of them to which he or she is sentenced shall run concurrently or
consecutively. . . . [¶] . . . Upon the failure of the court to
determine how the terms of imprisonment on the second or subsequent
judgment shall run, the term of imprisonment on the second or
subsequent judgment shall run concurrently."
If a court imposes consecutive sentences without stating reasons or
failing to understand its discretion to impose concurrent sentences,
remand would be required. (Cal. Rules of Court, rule 4.406(b)(5);
People v. Deloza (1998) 18 Cal.4th 585, 600; People v. Walker (1978)
83 Cal.App.3d 619, 622.) By operation of law, sentences run
concurrent where a trial court fails to determine whether sentences
run concurrent or consecutive; no reasons are needed for concurrent
sentences. (Pen. Code, § 669; People v. Lepe (1987) 195 Cal.App.3d
Here, defense counsel conceded concurrent sentencing was in order.
Having failed to object at the time of sentencing to the court's
imposition of a concurrent sentence, defendant has forfeited the issue
on appeal. There was an adequate opportunity to object before the
actual imposition of sentence. (People v. Gonzalez (2003) 31 Cal.4th
745, 752; People v. Scott (1994) 9 Cal.4th 331, 353-356.) Even
assuming the trial court imposed concurrent sentences because
Stanislaus County had already decided to do so, remand is not required
because reasons need not be stated for a concurrent sentence. The
trial court did not abdicate any statutory duty.
Defendant argues counsel rendered ineffective assistance in failing to ask for consecutive sentences in order to obtain a shorter aggregate term. To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) On review, we "exercise deferential scrutiny," i.e., we do not second-guess counsel's reasonable tactical decisions. (Ledesma, supra, 43 Cal.3d at p. 216.) We examine the record to determine if there is an explanation for the act or omission. If the record sheds no light on why counsel failed to act or acted in the manner challenged, the case is affirmed "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation[.]" (People v. Pope (1979) 23 Cal.3d 412, 426.)
While counsel could have requested a consecutive sentence in order to achieve a shorter aggregate sentence, he might rationally conclude that it would have been futile to do so. Defendant had absconded from sentencing in the first place, earning a bench warrant for his arrest, and then he committed an additional crime in Stanislaus County while released. Significantly, the court in this matter had just decided defendant's crimes justified sentencing him to the upper term of imprisonment. It is unlikely in the extreme that, upon defendant's request for consecutive sentencing, the court would then have turned around and sentenced defendant in such a way that would have resulted in a shorter term of imprisonment. Counsel was not asked to explain why he did not request consecutive sentencing and we will not second-guess his decision where a satisfactory explanation can be surmised. The effective assistance of counsel does not require requests of the court that are bound to fail.
The judgment is affirmed.
BLEASE, Acting P. J.
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