P. v. Rowman CA4/3 ( 2013 )

Filed 6/3/13 P. v. Rowman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G046916
v. (Super. Ct. No. 10HF0005)
RICHARD DANIEL ROWMAN, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Derek Guy Johnson, Judge. Reversed.
Richard Daniel Rowman, in pro. per.; and Patrick Morgan Ford, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Ifeolu E. Hassan, Deputy
Attorney General, for Plaintiff and Respondent.
* * *
Defendant Richard Daniel Rowman pleaded guilty to one count of
first degree residential burglary. As part of a plea agreement, defendant was sentenced to
a total of 12 years in state prison.
We appointed counsel to represent defendant on appeal. Appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no
issues, and requesting that we independently review the entire record.
On October 29, 2012, this court provided defendant with 30 days to file
written argument on his own behalf. Defendant requested additional time to file written
argument; this court granted defendant’s requests, and ultimately provided defendant
until February 26, 2013, to file a supplemental brief. Defendant did not file a
supplemental brief identifying any issues for our review.
In response to this court’s order for supplemental briefing on the limited
issue of defendant’s presentence custody credits, defendant, his appointed counsel, and
the Attorney General all filed supplemental letter briefs. We conclude defendant is
entitled to additional presentence custody credits, and we direct the trial court to amend
the judgment to award defendant a total of 31 days of presentence custody credit, and to
prepare an amended abstract of judgment reflecting defendant’s correct credits.
We have examined the entire record and counsel’s Wende/Anders brief, and
find no other arguable issue. (Wende, supra, 25 Cal.3d 436.)
BACKGROUND
Defendant’s plea agreement included the following: “I offer the following
facts as the basis for my guilty plea: [¶] In Orange County, California, on 12/1/09 I
unlawfully entered a[n] inhabited dwelling without consent and with the intent to
commit[] larceny inside.” Defendant was charged with one count of first degree
residential burglary. (Pen. Code, §§ 459, 460, subd. (a).) The amended felony complaint
alleged defendant had suffered two prior serious and violent felony convictions (id.,
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§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)); had served five prior
prison terms (id., § 667.5, subd. (b)); and had been convicted of two prior serious felonies
(id., § 667, subd. (a)(1)).
On June 21, 2010, defendant pleaded guilty to first degree residential
burglary as charged, and admitted the prior serious felony convictions and prison terms.
Defendant was sentenced the same day. As part of the plea agreement, the prosecution
agreed to move to strike the serious and violent felony prior conviction allegations, and
further agreed to strike the prior prison terms for the purpose of sentencing. The trial
court sentenced defendant, consistent with the plea agreement, to a total of 12 years in
prison: two years for residential burglary, plus two five-year terms as sentencing
enhancements for the prior serious felony convictions. Defendant’s probation in a
separate misdemeanor case was revoked and terminated.
The court awarded defendant a total of 20 days of presentence custody
credit, consisting of 14 actual days’ credit and six days of good conduct credit. The court
also ordered defendant to pay restitution in an amount to be determined; a $200
restitution fine; a $200 parole revocation restitution fine (to be suspended unless
defendant’s parole was revoked); a $30 court security fee; and a $30 criminal conviction
assessment fee. The court further ordered defendant to submit to DNA testing.
In December 2011, defendant, in propria persona, filed a motion to correct
the abstract of judgment to award him the correct number of presentence custody credits.
Defendant claimed he was entitled to 144 days of actual custody credit, plus 144 days of
good conduct credit, for a total award of 288 days of presentence custody credit. The
trial court denied the motion, and defendant appealed.
ANALYSIS OF POTENTIAL ISSUES
Defendant, in propria persona, filed a motion to correct the abstract of
judgment, claiming he was entitled to an award of more presentence custody credits. The
appellate record does not make clear on what date defendant was taken into custody in
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connection with the present offense. Defendant filed a supplemental appellate brief, in
propria persona, in which he explains he was arrested in December 2009 for a parole
violation in connection with a separate conviction, and sentenced to 12 months in prison.
Defendant claims he was transferred to Orange County jail on or about June 1, 2010 in
connection with this case. Defendant was never released from custody before he was
sentenced in the present case.
The Attorney General agrees that the appellate record is ambiguous
regarding the date on which defendant was taken into custody in connection with this
case, as opposed to his previous parole violation. The Attorney General further agrees
that defendant was in actual custody in connection with the present offense for between
12 and 29 days. The Attorney General does not dispute defendant’s representation that
he was transferred to Orange County jail on or about June 1, 2010.
A defendant is not entitled to presentence custody credits when he or she is
charged with a crime while already incarcerated and serving a sentence on a separate,
earlier crime. (People v. Bruner (1995) 9 Cal.4th 1178, 1180; In re Joyner (1989) 48
Cal.3d 487, 489; In re Rojas (1979) 23 Cal.3d 152, 155.) The test is whether the
defendant would have been free “but for” his or her incarceration on the second crime.
“[W]hen presentence custody may be concurrently attributable to two or more unrelated
acts, and where the defendant has already received credit for such custody in another
proceeding, the strict causation rules of Joyner should apply. Here, defendant received
credit for all presentence custody in his parole revocation proceeding, and he has failed to
demonstrate that but for the cocaine possession leading to his current sentence, he would
have been free, or at least bailable, during that presentence period. Hence, he is not
entitled to duplicative credit against the current sentence.” (People v. Bruner, supra, at
pp. 1180–1181.) Because defendant would not have been free from custody during his
presentence period in this case (until he was transferred to Orange County jail), as he was
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imprisoned in connection with his earlier parole violation, defendant was not entitled to
any additional presentence custody credits based on his December 2009 arrest.
However, a fair reading of the appellate record, combined with the
representations of defendant and the Attorney General in their respective supplemental
letter briefs, convinces us that defendant is entitled to more than the 20 days of
presentence custody credit originally awarded. Therefore, we reverse the trial court’s
postjudgment order denying defendant’s motion to correct the abstract of judgment, and
direct the trial court to award defendant 21 days of actual custody credit (from June 1
through June 21), plus 10 days of good conduct credit, for a total of 31 days of
presentence custody credit. (People v. Gutierrez (1991) 232 Cal.App.3d 1571, 1573
[two-for-one credits calculated by granting two days for each completed four-day block
of actual custody].) Because defendant was sentenced for a serious felony, and had prior
convictions for serious felonies, he was not entitled to one-for-one good conduct credits.
(Pen. Code, former § 4019, subds. (b) & (c), amended by Stats. 2009, 3d Ex. Sess.
2009-2010, ch. 28, § 50.)
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and
Anders, supra, 386 U.S. 738, has disclosed no other reasonably arguable appellate issue
regarding the postjudgment order. Competent counsel has represented defendant in this
appeal.
Defendant completed a plea form that described the constitutional rights he
was waiving by entering his guilty plea; the trial court reviewed those rights with
defendant, and found defendant knowingly, intelligently, and voluntarily waived those
rights. The court found there was a factual basis for the plea. The trial court’s sentence
was consistent with the plea agreement. The fees and fines imposed by the trial court
were proper.
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DISPOSITION
The postjudgment order denying defendant’s motion to correct the abstract
of judgment is reversed. We direct the trial court to amend the judgment to award
defendant a total of 31 days of presentence custody credit. We further direct the trial
court to prepare an amended abstract of judgment, and forward a certified copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation,
Division of Adult Operations.
FYBEL, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
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