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People v. Jacobs

California Court of Appeals, Sixth District

October 1, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
MATHEW JAMES JACOBS, Defendant and Appellant.

Superior Court of San Benito County, Nos. CR-11-01306 and CR-11-01572 Hon. Steven R. Sanders Judge

Attorney for Appellant: Mark David Greenberg, Under Appointment by the Court of Appeal.

Attorneys for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman and Jeffrey M. Laurence, Deputy Attorneys General.

ELIA, J.

Pursuant to a plea bargain, Mathew James Jacobs pleaded no contest to forcible rape (Pen. Code, § 261, subd. (a)(2))[1] and admitted a sentence enhancement allegation pursuant to section 12022.8 in Case No. CR-11-01306 and pleaded no contest to unlawful sexual intercourse with a minor more than three years younger than him (§ 261.5, subd. (c)) in Case No. CR-11-01572. On appeal, defendant Jacobs raises an ineffective assistance claim with respect to defense counsel's failure to argue for a lesser sentence within the agreed range and asserts that he is entitled to additional presentence credits for time served.[2]

We reject the ineffective assistance claim but we find errors in the calculation of presentence credit. Accordingly, we modify the judgments and affirm them as modified.

I

PROCEDURAL HISTORY

Defendant was arrested on July 22, 2011. The record reflects that bail in the amount of $50, 000 was posted on defendant's behalf by Luna Bail Bonds on July 23, 2011.

On August 15, 2011, a complaint was filed in Case No. CR-11-01306. It alleged that defendant had committed forcible rape in violation of section 261, subdivision (a)(2), on or about July 21, 2011. It further alleged that defendant had inflicted great bodily harm upon the victim within the meaning of section 12022.8.

Defendant was arraigned on August 16, 2011. The minute order indicates a bond and specifies that defendant waived time and entered pleas of not guilty.

Defendant was arrested on unrelated charges on September 17, 2011.

On September 20, 2011, a complaint was filed in Case No. CR-11-01572. It alleged that defendant had committed five offenses against one victim: forcible rape on or about July 8, 2011 (§ 261, subd. (a)(1)) (count one), sexual penetration by a foreign object on or about July 8, 2011 (§ 289, subd. (a)(1)) (count two), contact with a minor for sexual offense on or about June 30, 2011 (§ 288.3, subd. (a)) (count three), and annoying telephone calls on or about July 10, 2011 (§ 653m, subd. (a)) (count four). The complaint also contained special allegations with respect to counts one and two.

Defendant was arraigned the same day. Defendant waived time and entered pleas of not guilty.

The September 27, 2011 minute order in Case No. CR-11-01306 reflects that defendant was "released on bail posted." The September 27, 2011 minute order in Case No. CR-11-01572 indicates that defendant was in custody and bail was set at $200, 000 in that case.

On October 18, 2011 in Case No. CR-11-01306, the matter was continued on defendant's motion. The October 18, 2011 minute order in Case No. CR-11-01306 reflects a bond. The next hearing was set for November 15, 2011.

The October 18, 2011 minute order in Case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200, 000. The next hearing was set for November 15, 2011.

On November 15, 2011 in Case Nos. CR-11-01306 and CR-11-01572, the next hearing dates were scheduled. The preliminary examinations in those cases were set for December 19, 2011. The November 15, 2011 minute order in Case No. CR-11-01306 reflects that defendant was released in that case and "in custody on other charges." The November 15, 2011 minute order in Case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200, 000.

On November 29, 2011, the court rescheduled the preliminary examinations for January 9, 2012 and set the next hearing date for January 3, 2012 in Case Nos. CR-11-01306 and CR-11-01572. The November 29, 2011 minute order in Case No. CR-11-01306 reflects that defendant was "released on bail posted" in that case and "in custody on other charges." The November 29, 2011 minute order in Case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200, 000.

On January 3, 2012, the January 9, 2012 date for the preliminary examinations was confirmed in Case Nos. CR-11-01306 and CR-11-01572. The January 3, 2012 minute order in Case No. CR-11-01306 reflects that defendant was released in that case and "in custody on other charges." The January 3, 2012 minute order in Case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200, 000.

On January 9, 2012, on motion of the People and pursuant to a plea bargain involving both cases, the court added a fifth count in Case No. CR-11-01572 that charged defendant with committing a felony violation of section 261.5, subdivision (c), on July 8, 2011. The agreed sentencing range was eight years, eight months to 11 years. The court informed defendant that the maximum term based on the anticipated pleas and admissions under the bargain would have been 13 years, eight months. Defense counsel later noted that defendant would have been facing a maximum term of 29 years, eight months for the offenses as charged. The court advised defendant that he would be required to register with law enforcement for life.

In Case No. CR-11-01306, defendant pleaded no contest to committing a forcible rape in violation of section 261, subdivision (a)(2), on July 21, 2011 (count one) and admitted the enhancement allegation of great bodily injury within the meaning of section 12022.8. In Case No. CR-11-01572, defendant pleaded no contest to unlawful sexual intercourse in violation of section 261.5, subdivision (c), on July 8, 2011. The trial court referred the matters to the probation department for presentencing reports.

The record reflects that on January 9, 2012, the court ordered the bond "exonerated" and placed a "body only hold" on defendant in Case No. CR-11-01306. The court also granted defendant an "OR release" (own recognizance) in Case No. CR-11-01572. The January 9, 2012 minute order in Case No. CR-11-01306 states "body only" as to bail. The January 9, 2012 minute order in Case No. CR-11-01572 states that defendant is ...


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