People v. Sanchez CA2/3 ( 2014 )

Filed 2/14/14 P. v. Sanchez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B243566
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA361738)
v.
OMAR SANCHEZ et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los Angeles County,
Sam Ohta, Judge. Affirmed and remanded.
Linn Davis, under appointment by the Court of Appeal, for Defendant and
Appellant Omar Sanchez.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant Alex Chavarin.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson
and Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Defendants and appellants, Omar Sanchez and Alex Chavarin, appeal their
convictions for kidnapping for ransom, possession of a firearm by a felon (Chavarin
only), extortion (Chavarin only), evading an officer (Sanchez only), evading an
officer against traffic (Sanchez only), and leaving the scene of an accident (Sanchez
only), with a prior prison term enhancement (Sanchez only) (Pen. Code, §§ 209,
subd. (a), [former] 12021, 520, 667.5; Veh. Code, §§ 2800.2, 2800.4, 20001).1
Sanchez was sentenced to a prison term of seven years to life plus three years and
eight months. Chavarin was sentenced to a prison term of seven years to life.
The judgments are affirmed and Chavarin’s case is remanded for further
proceedings.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v.
Ochoa (1993) 6 Cal. 4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Felipe Olascoaga owned a market, sold cars and rented out party supplies.
He also owned various parcels of real estate. However, owing to the recession, he
was on the verge of bankruptcy. On Saturday, August 29, 2009,2 while delivering
party equipment, Olascoaga was kidnapped and beaten at gunpoint by three men,
one of whom was defendant Chavarin. These men drove Olascoaga to a residential
building on West 57th Street and took him to one of the apartments. Inside the
bathroom, his clothes were cut off with a knife, and his money, ring and watch were
taken. He was placed inside the bathtub, handcuffed to a bar, and the tub was filled
with water. He was beaten some more.
1
All further references are to the Penal Code unless otherwise specified.
2
All further date references are to the year 2009 unless otherwise specified.
2
An hour later, defendant Sanchez arrived and spoke to Olascoaga. Sanchez
seemed to be the boss because the other men covered Olascoaga’s face with a towel
every time Sanchez came to the apartment. Sanchez called Olascoaga’s wife, Estela
Espinoza, and demanded $250,000. He said if she did not come up with the money
“they would kill [Olascoaga] and they would also go after her.” Olascoaga told
Sanchez he did not have that kind of money because his properties were in
foreclosure. Sanchez told him to sell his cars and his business right away because
they wanted the money by the next day.
Olascoaga was held prisoner for the next four or five days. At one point he
was placed face down in the bedroom so the residents of the apartment could bathe.
Each day Sanchez and the other men pressured Olascoaga about the money. He
was beaten and kicked, and Sanchez burned him with a cigarette. Sanchez called
Espinoza at least three times a day about paying the ransom.
When the ransom had not been paid by the Sunday deadline, Sanchez told
Olascoaga “that at the very least I had to give him a hundred thousand dollars and
. . . when I got out, he was going to be watching me. And that I would later have to
give him the rest of the money.” On Monday, Sanchez had a pair of pliers and he
told Olascoaga to choose which finger he wanted cut off “so they could send it to
my wife so she would know that they weren’t joking around.” Sanchez tried
unsuccessfully to cut off one of Olascoaga’s fingers.
Espinoza testified she received a series of phone calls from an unidentified
man. In the first call, the man announced they had her husband. During a second
call, the man put Olascoaga on the phone. Olascoaga cried and screamed as he was
being beaten. The caller threatened to kill her husband if Espinoza did not deliver
$250,000. In subsequent calls the man urged Espinoza to hurry up and get the
money together. On Monday, the police began recording these phone calls.
Late Tuesday night, or early Wednesday morning, after the other men left the
apartment, Chavarin told Olascoaga he had learned the others were going to cut off
Olascoaga’s hand and send it to either Espinoza or the police. Chavarin indicated
3
he had undergone a change of heart and offered to free Olascoaga if Olascoaga paid
him some money. Olascoaga testified: “Something touched [Chavarin’s] heart,”
and “he was going to help me get out of there” if Olascoaga gave him “whatever I
had.” Olascoaga promised to give Chavarin whatever money his wife had managed
to collect. According to Olascoaga, Chavarin “was very nervous and he was
sweating a lot. And . . . he spent about 20 to 30 minutes talking to me. He would
leave the bathroom to go to the living room. And then he would come back and he
would say, ‘Yes, yes, I’m going to get you out.’ ”
Chavarin removed Olascoaga’s handcuffs with a wire and let him out of the
bathtub. He gave Olascoaga a loaded gun “[b]ecause he told me that he was . . .
afraid that his partners might be outside and they would kill us and him, too.”
Olascoaga and Chavarin left the apartment. Olascoaga returned the gun to Chavarin
after they discovered there was nobody outside the building. Olascoaga contacted
Espinoza, who said she had managed to collect some money. This money was
conveyed to Olascoaga, who gave Chavarin about $29,000. Olascoaga also gave
Chavarin a pickup truck.
Sanchez’s former girlfriend listened to the recorded calls made to Espinoza’s
phone and identified the caller as Sanchez.
On September 3, at 11:55 p.m., police officers attempted to make a traffic
stop on Sanchez. Officer Nelson Fong testified two police vehicles were involved.
He described these as “dual-purpose” vehicles: “They are Ford Crown Victorias.
They’re not marked black and white or anything that says ‘Police’ on it other than
having a forward-facing red light and a rear amber light.” One of the vehicles
pulled up alongside Sanchez’s car and the other vehicle pulled right behind him.
Sanchez looked at the officers and “then he just took off.” The officers activated
their front and rear emergency lights, and their sirens, and pursued Sanchez. After
traveling a block and a half, Sanchez drove the wrong way up an off ramp of the
10 freeway and then continued driving in the wrong direction on the freeway. Fong
testified the officers chased him with “our emergency lights and sirens on, trying to
4
warn . . . potential drivers coming our way.” After a little more than a mile,
Sanchez’s car hit a median and crashed into a minivan. Sanchez left his car and
jumped from a freeway overpass, landing on the ground 40 or 50 feet below, where
he was apprehended.
Chavarin was arrested on November 11 near the Mexican border.
2. Defense evidence.
Chavarin did not present any evidence.
Sanchez testified in his own defense. He denied it was his voice on the
recorded phone calls demanding money from Espinoza. He acknowledged these
phone calls had been made from a phone belonging to him, but he claimed he had
given this phone to his brother prior to the kidnapping.
Sanchez testified he had used methamphetamine shortly before getting into
his car the night he was stopped by the police. At first he was unaware the police
were trying to pull him over; he just panicked when he saw a car right behind him.
But then, as he was driving up the off ramp, he “realized that they were police, but
it was a little too late for me to stop. I was already on the freeway.” Sanchez
testified: “I see the lights, and . . . it was too late for me to stop. [¶] Q. You
noticed [that it was the police] as you were entering the onramp . . . . [¶]
A. Yeah.” Sanchez also testified he was consciously trying to get away from
the police because “I wanted to spend my birthday with my son.”
CONTENTIONS
1. Sanchez’s Vehicle Code convictions must be reversed for insufficient
evidence.
2. The trial court erred by not staying Chavarin’s sentence for extortion.
3. Chavarin may be entitled to additional presentence custody credits based
on his custody in Mexico.
5
DISCUSSION
1. There was sufficient evidence to support Sanchez’s convictions for
evading the police.
Sanchez contends his convictions for evading an officer and evading an
officer against traffic (Veh. Code, §§ 2800.2, 2800.4) must be reversed because
there was insufficient evidence to prove the “distinctively marked police vehicle”
element of these offenses. This claim is meritless.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task
is to review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence – that is, evidence that is
reasonable, credible, and of solid value – such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.] The federal
standard of review is to the same effect: Under principles of federal due process,
review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond a
reasonable doubt, but, instead, whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it
finds that circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the appellate
court[,] which must be convinced of the defendant’s guilt beyond a reasonable
doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal. 4th 1, 11.)
6
“ ‘An appellate court must accept logical inferences that the [finder of fact]
might have drawn from the circumstantial evidence.’ [Citation.] ‘Before the
judgment of the trial court can be set aside for the insufficiency of the evidence, it
must clearly appear that on no hypothesis whatever is there sufficient substantial
evidence to support the verdict of the [finder of fact].’ [Citation.]” (People v.
Sanghera (2006) 139 Cal. App. 4th 1567, 1573.) As our Supreme Court said in
People v. Rodriguez, supra, 20 Cal. 4th 1, while reversing an insufficient evidence
finding because the reviewing court had rejected contrary, but equally logical,
inferences the jury might have drawn: “The [Court of Appeal] majority’s reasoning
. . . amounted to nothing more than a different weighing of the evidence, one the
jury might well have considered and rejected. The Attorney General’s inferences
from the evidence were no more inherently speculative than the majority’s;
consequently, the majority erred in substituting its own assessment of the evidence
for that of the jury.” (People v. Rodriguez, supra, 20 Cal.4th at p. 12, italics added.)
“[Vehicle Code s]ection 2800.2 makes it a crime for a motorist to flee from,
or attempt to elude, a pursuing peace officer’s vehicle in ‘violation of Section
2800.1’ and ‘in a willful or wanton disregard for the safety of persons or property.’
Under section 2800.1, a person who operates a motor vehicle ‘with the intent to
evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s
motor vehicle, is guilty of a misdemeanor . . . if all of the following conditions exist:
[¶] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp
visible from the front and the person either sees or reasonably should have seen the
lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may be
reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively
marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer . . .
wearing a distinctive uniform.’ (Italics added.) Thus, the statute requires four
distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a
distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.
[Citation.]” (People v. Hudson (2006) 38 Cal. 4th 1002, 1007-1008.)
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Similarly, Vehicle Code section 2800.4 is directed at “a person [who]
willfully flees or attempts to elude a pursuing peace officer in violation of Section
2800.1, and the person operating the pursued vehicle willfully drives that vehicle on
a highway in a direction opposite to that in which the traffic lawfully moves upon
that highway . . . .”
b. Discussion.
Sanchez contends the prosecution failed to prove these two crimes because
the “distinctively marked” element was missing. He notes Hudson holds “that a
peace officer’s vehicle is distinctively marked if its outward appearance during the
pursuit exhibits, in addition to a red light and a siren, one or more features that are
reasonably visible to other drivers and distinguish it from vehicles not used for law
enforcement so as to give reasonable notice to the person being pursued that the
pursuit is by the police.” (People v. Hudson, supra, 38 Cal.4th at p. 1006, italics
added.) “[I]n determining whether the pursuing police vehicle is distinctively
marked, a jury may consider only the distinguishing features of the vehicle itself
that are reasonably visible to other drivers and serve to distinguish the vehicle from
vehicles not used in law enforcement.” (Id. at p. 1014.)
Hudson approved the reasoning of both People v. Mathews (1998)
64 Cal. App. 4th 485, 489-490 (alternating headlights satisfied “distinctively
marked” element) and People v. Estrella (1995) 31 Cal. App. 4th 716, 722-723
(light bar on windshield, rear warning lights and alternating headlights satisfied
“distinctively marked” element). Hudson itself concluded a rear blue amber
blinking light might have satisfied the “distinctively marked” element had the jury
been given a proper instruction on the crime’s elements. Here, Officer Fong
testified his vehicle was equipped with rear emergency lights that had been
8
activated during the chase, and the trial court did not give the kind of jury
instruction disapproved of by Hudson.3
In addition, when Sanchez testified, he admitted that before reaching the
freeway proper he realized the police were trying to pull him over and he made a
conscious decision not to stop. Given these admissions, the evidence was certainly
sufficient to prove Sanchez violated Vehicle Code sections 2800.2 and 2800.4.
2. Chavarin’s sentence did not violate section 654.
Chavarin contends the trial court should have stayed his sentence for
extortion (count 9).4 He argues the sentence constituted improper multiple
punishment under section 654 because he had already been punished for the same
course of conduct when the trial court sentenced him on count 6 (kidnapping for
ransom). This claim is meritless.
3
The trial court in Hudson told the jury: “ ‘The term “distinctively marked”
does not necessarily mean that the police vehicle must be marked with an insignia
or logo. The jury is to determine whether the circumstances, which may include
evidence of a siren and red lamp, are sufficient to inform any reasonable person that
he was being pursued by a law enforcement vehicle.’ The court then incorporated
that modified definition of ‘distinctively marked’ into the standard jury instruction
defining the offense of attempting to elude a pursuing peace officer with willful
disregard of the safety of persons or property. (See CALJIC No. 12.85 (1999 rev.).)
Defense counsel objected to the modified part of the instruction on the ground that
it left out the statutory requirement that the police vehicle be distinctively marked,
but he did not offer an alternative instruction.” (People v. Hudson, supra, 38
Cal.4th at p. 1011.) Hudson held the instruction was incorrect because “for
purposes of section 2800.1, a pursuing peace officer’s vehicle is ‘distinctively
marked’ if its outward appearance during the pursuit exhibits, in addition to a red
light and a siren, one or more features that are reasonably visible to other drivers
and distinguish it from vehicles not used for law enforcement so as to give
reasonable notice to the fleeing motorist that the pursuit is by the police.” (Id. at pp.
1010-1011, fn. omitted.) Sanchez’s jury was given only the standard instruction,
which listed “distinctively marked” as a separate element in addition to one red
lamp visible from the front of the vehicle and a siren.
4
The trial court imposed a concurrent term on count 9.
9
a. Legal principles.
Section 654, subdivision (a), the prohibition against multiple punishment,
provides in pertinent part: “An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” “ ‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one
of such offenses but not for more than one.’ [Citation.]” (People v. Latimer (1993)
5 Cal. 4th 1203, 1208.)
“The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in
making this determination. Its findings on this question must be upheld on appeal if
there is any substantial evidence to support them. [Citations.] ‘We must “view the
evidence in a light most favorable to the respondent and presume in support of the
[sentencing] order the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.]’ ” (People v. Hutchins (2001) 90 Cal. App. 4th 1308, 1312-
1313; People v. McCoy (1992) 9 Cal. App. 4th 1578, 1585 [trial court’s finding,
whether explicit or implicit, may not be reversed if supported by substantial
evidence].)
b. Background.
The trial court expressly found Chavarin had engaged in more than one
course of conduct when he double-crossed his crime partners and brokered his own
deal to set Olascoaga free in exchange for whatever cash Olascoaga could give him.
As the trial court explained: “The demand by Sanchez for $250,000 was not
bearing fruit. The threat to physically maim Mr. Olascoaga inside of the
defendant’s own apartment appeared to place the defendant in a precarious position.
The defendant, therefore, decided to double cross Mr. Sanchez and obtain the
10
financial benefit for himself. In that regard, he cut a deal with Mr. Olascoaga for
his release in exchange for $29,000. This, the court believes, is a separate intended
objective. Mr. Chavarin shifted from the original plan to the new plan and that shift
is a change in that intent and objective.”
c. Discussion.
The jurors were told the elements of kidnapping for ransom or extortion
(count 6) were the following:
“1. A person was seized, confined, inveigled, enticed, decoyed, adducted,
concealed, kidnapped, or carried away;
“2. The action and/or actions taken in Element 1 against the person was
without that person’s consent; and
“3. The perpetrator of the action and/or actions taken in Element 1 had the
specific intent to hold or detain that person for ransom or to commit extortion or to
obtain something of value from another.”
The jurors were told the elements for extortion (count 9) were the following:
“1. A person obtained property from the alleged victim;
“2. The property was obtained with . . . the consent of the alleged victim;
“3. The alleged victim’s consent was induced by the wrongful use of force
or fear; and
“4. The person who wrongfully used force or fear did so with a specific
intent to induce the alleged victim to consent to the giving up of his property.”
Chavarin argues these instructions allowed his jury to convict him on count 6
for kidnapping Olascoaga for ransom, as well as on count 9 for extorting money
from Olascoaga “based on a shared objective, or specific intention, of obtaining the
victim’s property (via extortion). [¶] There was substantial trial evidence to
support one and only one criminal objective on the part of appellant throughout the
events . . . to wit, to get as much money as possible from Olascoaga and his wife in
return for Olascoaga’s release.” He argues: “The money demands were based on
the abductors’ perception that Olascoaga and his wife had substantial business and
11
real estate holdings that would permit them to meet the abductors’ demands
quickly. The abductors’ demands started at $250,000; but after Olascoaga told
them that he was in bankruptcy and no longer controlled his real estate holdings,
their demand shrank to $100,000 to be paid immediately, and the balance of the
$250,000 to be paid after Olascoaga’s release. [¶] Put simply, the abductors’
collective objective (including that of appellant) was to get as much money from
Olascoaga and his wife as they could pay in exchange for his release.” Chavarin
asserts his “own objective remained unchanged when he offered, on his own, to
release Olascoaga in exchange for Olascoaga giving” him whatever money he had.
Citing two Court of Appeal cases, the Attorney General argues the trial court
properly determined the events were more correctly characterized as a divisible
course of conduct involving multiple objectives.
In People v. Porter (1987) 194 Cal. App. 3d 34, the defendant and an
accomplice jumped into the victim’s car, held a knife to his throat and looked
through his wallet. Finding less than $10, the perpetrators insisted the victim must
have more money. After discovering what they believed to be an ATM card, the
perpetrators had the victim drive them to his bank. While they were waiting for
their turn at the ATM machine, the victim escaped. On appeal, the defendant
claimed he had been improperly sentenced for both robbery and kidnapping for the
purpose of robbery.
Porter held there was no section 654 violation. “The record in this case
supports the trial court’s implied finding that the two crimes for which appellant
was sentenced involved multiple objectives, were not merely incidental to each
other, and were not part of an indivisible course of conduct. [¶] A reasonable
inference from the record is that appellant and his companion initially planned only
to rob the victim of the contents of his wallet, but thereafter came up with a new
idea: kidnapping the victim to his bank to compel him to withdraw money from his
account by means of what they thought was an automated teller card.” (People v.
Porter, supra, 194 Cal.App.3d at p. 38.) “This is not, therefore, a case of punishing
12
appellant for kidnapping for the purpose of robbery and for committing ‘that very
robbery.’ [Citation.] Nor is this a case of multiple punishment for taking several
items during the course of a robbery. [Citation.] What began as an ordinary
robbery turned into something new and qualitatively very different. No longer
satisfied with simply taking the contents of the victim’s wallet, appellant decided to
forcibly compel the victim to drive numerous city blocks to a bank where, only with
the victim’s compelled assistance, could appellant achieve a greater reward. The
trial court could reasonably treat this as a new and independent criminal objective,
not merely incidental to the original objective and not a continuation of an
indivisible course of conduct. In the unusual circumstances of this case, appellant
could be punished both for the robbery he committed and the kidnapping for the
purpose of a distinctly different type of robbery.” (Id. at pp. 38-39, italics added.)
In People v. Smith (1992) 18 Cal. App. 4th 1192, Smith and his accomplice
visited the victim’s apartment, where Smith punched the victim in the face, pinned
him to the floor and demanded money. The victim turned over several hundred
dollars, but Smith demanded more. The victim said he might be able to get more at
the bank. Forcing the victim into his own car, Smith drove to a bank ATM. The
victim handed over his ATM card and personal identification number, which
allowed Smith to withdraw $200. The perpetrators then released the victim and
drove off in the victim’s car. Smith was convicted of robbery, kidnapping for
robbery, assault with a deadly weapon and car theft. The Court of Appeal held
section 654 did not preclude separate punishment for both robbery and kidnapping
for robbery. Relying on the reasoning in Porter, Smith concluded these crimes did
not constitute an indivisible transaction.
The Attorney General argues “the record supports the trial court’s finding
that the original kidnapping and appellant’s extortion had multiple divisible
objectives because the extortion perpetrated solely by appellant Chavarin was
qualitatively different than the original kidnapping that was carried out by appellant
Sanchez, appellant Chavarin, and the others.” We agree. The evidence showed
13
there had been a drastic change of plans, even more drastic than in Porter or Smith.
After the initial ransom scheme seemed to be failing, and when it appeared his
partners were planning to torture Olascoaga inside Chavarin’s apartment, Chavarin
decided on a double cross. He came up with a plan that would benefit only himself,
and that could be carried out because his partners were absent at the moment. To
execute this new plan, Chavarin went so far as to give Olascoaga a loaded gun in
case his partners tried to intervene. By double-crossing his partners in this way,
Chavarin embarked upon a new objective and, thereby, created a divisible course of
conduct. Although the aim of this second criminal enterprise was also to extort
money from Olascoaga, this second objective would benefit Chavarin at the
expense of his partners in the first scheme.
Chavarin’s reliance on People v. Bauer (1969) 1 Cal. 3d 368, to defeat this
reasoning is misplaced. Bauer was a home invasion case in which the defendant
and his accomplice tied the victims up, ransacked their house and carried the stolen
loot into the victims’ garage. The perpetrators then drove the loot away in a car
belonging to one of the victims. Bauer’s own analysis shows why that case does
not apply here: “The Attorney General urges that the separate sentences for robbery
and car theft may be upheld on the theory that the robbery was complete before the
theft of the car began and that the theft of the automobile was an afterthought to the
original transaction. The fact that one crime is technically complete before the
other commenced does not permit multiple punishment where there is a course of
conduct comprising an indivisible transaction. [Citations.] And the fact that one of
the crimes may have been an afterthought does not permit multiple punishment
where there is an indivisible transaction. . . . Moreover, the evidence in the instant
case does not show that the theft of the car was an afterthought but indicates to the
contrary that the robbers, who while ransacking the house were carrying the stolen
property to the garage, formed the intent to steal the car during the robbery if not
before it. (Id. at p. 377, italics added.)
14
The facts here are entirely different. Chavarin’s unilateral change of heart
and decision to free Olascoaga in exchange for whatever cash Olascoaga could
immediately pay him was more than an “afterthought.” It constituted an entire
change of plans that was carried out in direct opposition to the interests of his
former partners.
There was substantial evidence to support the trial court’s sentencing
determination.
3. Remand for recalculation of presentence custody credits.
Chavarin contends, and the Attorney General properly agrees, that we must
remand for further proceedings to insure a proper calculation of presentence
custody credits. It appears the credits awarded by the trial court may have failed to
include time Chavarin spent in custody in Mexico after his arrest there, and before
he was returned to the United States. As our Supreme Court said in In re Watson
(1977) 19 Cal. 3d 646: “The crucial element of [section 2900.5] is not where or
under what conditions the defendant has been deprived of his liberty but rather
whether the custody to which he has been subjected ‘is attributable to charges
arising from the same criminal act or acts for which the defendant has been
convicted.’ (§ 2900.5, subd. (b).) In recognition of this element the courts have
placed the emphasis on the fact of the defendant’s custody prior to the
commencement of his sentence regardless of the particular locale, institution,
facility or environment of his incarceration.” (Id. at pp. 651-652.) “It is noteworthy
that in 1976 the Legislature . . . amended section 2900.5, to broaden the term
‘custody’ without limitation as to place of presentence custody. It is also
noteworthy that the Courts of Appeal have at least impliedly recognized that
presentence custody in another jurisdiction qualifies for credit.” (Id. at pp. 652-653,
fn. omitted.)
We will remand Chavarin’s case so the trial court may determine if he is
entitled to additional presentence custody credits.
15
DISPOSITION
The judgments are affirmed. Chavarin’s case is remanded to the trial court
for further proceedings in conformance with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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