People v. Dandy CA2/2 ( 2015 )

Filed 12/17/15 P. v. Dandy CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B259775
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA409414)
v.
JENNIFER NOEL DANDY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Craig E. Veals, Judge. Affirmed as modified.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Deputy
Attorney General, and Andrew S. Pruitt, Deputy Attorney General, for Plaintiff and
Respondent.
* * *
Defendant Jennifer Noel Dandy (defendant) appeals the trial court’s calculation of
her presentence custody credits. We conclude that the court’s calculations are not
correct, and order that her total custody credits be reduced by eight days.
FACTS AND PROCEDURAL BACKGROUND
On July 2, 2013, defendant entered a plea to a single count of possessing cocaine
for sale (Health & Saf. Code, § 11351.5). The trial court imposed but suspended a four-
year prison sentence and placed her on probation for five years. The court noted that
defendant had four days of custody credit.
Just over a year later, on August 1, 2014, defendant was present in a hotel room
with narcotics in plain view; she also possessed a purse containing $560 in various
denominations of cash and the keys to a car containing additional narcotics. Police
arrested her that day, and her bail was set at $30,000.
Six days later, on August 7, 2014, the trial court summarily revoked her probation
on the 2013 case and issued a no bail bench warrant.
The People opted to proceed against defendant for this 2014 conduct as a violation
of her probation in the 2013 case rather than as a separate prosecution. On October 1,
2014, the trial court held an evidentiary hearing on the probation violation, and found
defendant in violation.
The trial court imposed the previously suspended four-year prison term. The court
awarded defendant 124 days of custody credit—62 days of actual credit (from August 1,
2014 through October 1, 2014), and 62 days of good time/work time credit. Although the
People informed the court that defendant had four days of unused custody credit from the
time of her initial sentencing, the court did not award those credits. The abstract of
judgment is consistent with the court’s oral pronouncement of judgment.
Defendant timely appeals.
DISCUSSION
Defendant phrases her sole argument on appeal as a challenge to the trial court’s
“fail[ure] to correct the abstract of judgment to show the correct amount of presentence
custody credits.” But the abstract of judgment matches the court’s oral pronouncement of
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sentence. Consequently, defendant is challenging the court’s calculation of custody
credits.
I. Jurisdiction
Where, as here, the “sole issue on appeal” is the alleged “error in the calculation of
presentence custody credits,” the appeal is proper only if (1) the defendant “first
present[ed] the claim in the trial court at the time of sentencing,” or (2) “the defendant
[made] a motion for correction of the record in the trial court” when “the error [was] not
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discovered until after sentencing.” (Pen. Code, § 1237.1 ; People v. Acosta (1996) 48
Cal. App. 4th 411, 415 (Acosta).) In this case, although it was the People and not
defendant who presented defendant’s entitlement to four days of custody credit from the
initial imposition of her sentence in 2013, it is undisputed that the issue was presented to
the trial court. We consequently have jurisdiction to entertain this appeal.
II. Merits
As a general matter, a criminal defendant is entitled to credit for “all days” that she
spends in presentence custody. (§ 2900.5, subd. (a).) However, this 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.” (§ 2900.5, subd. (b).)
We independently consider the meaning of these statutes as well as the application of
these statutes to undisputed facts. (People ex rel. Lockyer v. Shamrock Foods Co. (2000)
24 Cal. 4th 415, 432; Pasadena Police Officers Assn. v. Superior Court (2015) 240
Cal. App. 4th 268, 284.) A defendant bears the burden of showing her entitlement to
custody credits. (E.g., People v. Jacobs (2013) 220 Cal. App. 4th 67, 81.)
A. Entitlement to credits from initial imposition of probation
Defendant argues that the trial court erred in not giving her presentence custody
credit for the four days of custody credit she earned prior to being placed on probation in
2013. As the People concede, defendant is entitled to this credit. (E.g., People v. Huff
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
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(1990) 223 Cal. App. 3d 1100, 1106 (Huff) [upon revocation of probation, awarding
custody credit for time served prior to imposition of probationary sentence].)
B. Entitlement to credits between time of arrest and when the court
summarily revoked probation
The People contend that the trial court erred in giving defendant actual custody
credit for the six days between her arrest on August 1, 2014 and the court’s summary
revocation of her probation on August 7, 2014; thus, the People reason, defendant is
entitled to 12 fewer days of custody credit (six fewer actual days, and six fewer good
time/work time credits under section 2933, subdivision (b).) The People may raise this
issue, even though defendant appealed, because we are “empowered to correct these
errors whenever either side requests such relief.” (People v. Duran (1998) 67
Cal. App. 4th 267, 269-270.)
The People’s argument is well taken. The identical scenario arose in both Huff,
supra, 223 Cal. App. 3d 1100, and People v. Pruitt (2008) 161 Cal. App. 4th 637 (Pruitt).
“[I]n both cases the probationers were arrested on new charges, held in custody solely on
those charges for a period prior to summary revocation of their probation and ultimately
sentenced on the underlying convictions not the new charges, albeit for engaging in the
conduct that led to the filing of the new charges.” (Pruitt, at p. 643.) In both cases, the
appellate courts upheld the trial court’s refusal to award custody credit for the time spent
in custody after arrest but before summary revocation of probation. (Huff, at pp. 1105-
1106; Pruitt, at pp. 630-645.) In both cases, the time the defendant spent in custody prior
to summary revocation of his probation was not “attributable to proceedings related to the
same conduct for which the defendant has been convicted” because the defendant was
never convicted on the new charges, and thus fell within limitation on custody credits set
forth in section 2900.5, subdivision (b). (§ 2900.5, subd. (b), italics added.) The same is
true here.
Defendant offers three arguments against this result. First, she argues that this
result cannot be squared with our Supreme Court’s decision in In re Marquez (2003) 30
Cal. 4th 14 (Marquez). To begin, the court in Pruitt considered and rejected the same
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argument. (Pruitt, supra, 161 Cal.App.4th at p. 639.) We also do not perceive any
conflict. The issue in Marquez was whether a defendant who was in the physical custody
of one county but under a “hold” in a second county was entitled to custody credit in the
second county after his conviction in the first county was overturned on appeal; the court
concluded he was. (Marquez, at p. 20; accord, People v. Lathrop (1993) 13 Cal. App. 4th
1401, 1404-1406 [defendant entitled to custody credit against sentence imposed in one
county for time spent in custody of another county where the first county had placed a
hold on him]; People v. Gonzalez (2006) 138 Cal. App. 4th 246, 254 (Gonzalez) [where
probation had been summarily revoked, defendant entitled to custody credit against the
sentence imposed for a probation violation for the time spent in custody after arrest for a
different case].) The court in Marquez was careful to note that the defendant would not
have been entitled to custody credit in the second county “had [that county] never placed
a hold” on him, and distinguished Huff on that ground. (Marquez, at pp. 20-21, 24.) In
other words, Marquez specifically preserved Huff’s rule on the scenario presented in Huff
and in this case.
Second, defendant argues Pruitt, supra, 161 Cal. App. 4th 637 is wrongly decided
because it relies on our Supreme Court’s inapplicable decision in People v. Bruner (1995)
9 Cal. 4th 1178 (Bruner). We agree that Bruner is inapplicable to the scenario presented
in this case because Bruner examined the circumstances under which a criminal
defendant is entitled to have the same custody credits applied against two different
sentences. (Id. at pp. 1180-1181; accord, Marquez, supra, 30 Cal.4th at p. 23
[distinguishing Bruner on this basis]; Gonzalez, supra, 138 Cal.App.4th at p. 254
[same].) But Pruitt, while discussing Bruner, did not rely on its rule or its rationale.
(Pruitt, at pp. 641-645.)
Lastly, defendant asserts that unless she is credited those six days for the probation
violation, they will not be credited against any sentence and will become “dead time.”
Although such “dead time” is not preferred, our Supreme Court has acknowledged that
“[s]ometimes [it] is unavoidable.” (Marquez, supra, 30 Cal.4th at p. 20.) Section 2900.5,
subdivision (b) made it unavoidable in Huff and Pruitt, and does so in this case as well.
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Defendant relatedly argues that this outcome violates equal protection. We disagree.
“Dead time” is not inherently unconstitutional. A person who is arrested on criminal
charges that are later dismissed will suffer “dead time.” That “dead time” does not
somehow become unconstitutional just because it happens to be followed by custodial
time for which that person does receive custody credit by virtue of a subsequent
revocation of probation.
DISPOSITION
We order that the trial court grant defendant an additional four days of custody
credit earned prior to her placement on probation, but that the court subtract a total of
twelve days—six days of actual custody credit and six days of good time/work time
credit—for the time between August 1, 2014 and August 7, 2014. The clerk of the
superior court is directed to modify the abstract of judgment to reflect these changes in
custody credit, and forward a copy of the corrected abstract of judgment to the
Department of Corrections and Rehabilitation. In all other respects the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, J.
HOFFSTADT
We concur:
______________________, P.J.
BOREN
______________________, J.
ASHMANN-GERST
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