People v. Vidor CA1/1 ( 2020 )

Filed 12/3/20 P. v. Vidor CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A156690
v.
MATTHEW JAMES VIDOR, (Sonoma County
Super. Ct. No. CR668037)
Defendant and Appellant.
Appellant Matthew James Vidor was convicted by plea of carjacking,
recklessly fleeing a police vehicle, and elder abuse. After his probation was
terminated as unsuccessful, the trial court sentenced appellant to a term of
10 years eight months in prison, with credit for certain pretrial custody. On
appeal, he challenges the court’s denial of 251 days of custody credits for time
he spent in jail on an unrelated case in a different jurisdiction after he
violated probation in this case. While the appeal was pending, appellant
requested that we consider whether his conviction should be conditionally
reversed and the matter remanded to the trial court for a determination of
his eligibility for pretrial mental health diversion under Penal Code1 section
1001.36 and People v. Frahs (2020) 9 Cal.5th 618. The Attorney General
agrees that appellant meets the threshold requirements for conditional
1 All undesignated statutory references are to the Penal Code.
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reversal. We affirm the trial court’s sentencing order and conditionally
reverse and grant a limited remand for the purpose of determining
appellant’s eligibility for mental health diversion under section 1001.36.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2015, appellant was charged in Sonoma County with carjacking
(Pen. Code, § 215, subd. (a)), count 1; fleeing a pursuing police vehicle while
driving recklessly (Veh. Code, § 2800.2), count 2; and elder abuse (§ 368,
subd. (b)(1)), count 3. The complaint further alleged that count one was a
serious and violent felony pursuant to section 667.9, subdivision (a) because
the victim was elderly. Four months earlier, the appellant had been
sentenced by the San Francisco County Superior Court to serve 36 months of
formal probation and 72 days in jail for vehicle theft (Veh. Code, § 10851,
subd. (a)) and attempted carjacking (§§ 664/215, subd (a).) (People v. Vidor
(Super. Ct. SF City and County, 2015, No. 223642.) Criminal proceedings in
the underlying case were suspended from August 5, 2015 to December 11,
2015, while appellant was restored to competency. He ultimately entered an
open plea to all charges in March 2016.
On July 19, 2016, the trial court imposed and suspended a sentence of
10 years eight months, and placed appellant on formal probation for four
years on the condition that he serve one year in county jail and enter the
Jericho Project drug and alcohol treatment program (Jericho). The court
awarded 349 days actual credit plus 348 days conduct credit plus 35 hospital
days for a total of 732 presentence custody credits.
On August 28, 2016, nine days after his admission, appellant was
discharged from Jericho, reportedly due to his negative attitude and behavior
and his failure to respond adequately to treatment. He did not contact the
probation department and report his discharge, even though he had been
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instructed to do so. On September 2, 2016, the Sonoma County trial court
summarily revoked appellant’s probation and issued a warrant for his arrest.
On April 25, 2017, a hearing was held on a request to clear appellant’s
warrant from Sonoma County. The trial court was informed by appellant’s
counsel that 23 days after he was discharged from Jericho, appellant was
taken into custody in San Francisco on an arrest warrant that had issued
after he failed to report to the San Francisco probation department. From
the reporter’s transcript of that hearing, it appears that neither the trial
court nor the Sonoma County probation department had previously been
informed of appellant’s arrest. The court declined counsel’s request to clear
the warrant and ordered appellant returned to Sonoma County. After
serving 251 days in custody in San Francisco County jail, appellant was
returned to Sonoma County on May 30, 2017. Appellant admitted his
probation violation on July 17, 2017.
On September 19, 2017, the trial court below terminated appellant’s
probation as unsuccessful and executed the previously imposed sentence of 10
years eight months. The court awarded 493 days of credit for time served,
which consisted of 349 days he previously accrued before being placed on
probation in this matter, 31 days accrued while awaiting placement in
Jericho, and 113 days in Sonoma County jail following his transfer from San
Francisco. Appellant was also awarded 74 days of conduct credit pursuant to
section 2933.1, subdivision (c), and 35 hospital days he had previously
accrued for a total of 602 days of credit. Appellant filed a notice of appeal.
In August 2018, appellant’s appellate counsel sent a letter to the trial
court requesting that appellant be credited for the 251 days he spent in jail in
San Francisco prior to his detention in Sonoma County. Counsel represented
that appellant had been in custody in San Francisco “due to a Sonoma
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County hold,” relying on the reporter’s transcript of the April 25, 2017
hearing.
On September 27, 2018, we issued our opinion in People v. Vidor
(Sept. 27, 2018, A152527 [nonpub. opn.]) (Vidor I). We remanded the case to
the trial court to consider appellant’s custody credits, noting it was unclear
what had triggered the reduction in conduct credits from the original
sentence in July 2016 and the sentence imposed in September 2017. (Vidor I,
supra, A152527.) As both sides here acknowledge, however, the trial court
correctly reduced appellant’s conduct credits from 349 to 74 days when his
prison sentence was reinstated in September 2017. We accept appellant’s
concession on this point. Because appellant was sentenced to state prison for
carjacking in violation of section 215, subdivision (a)—a violent felony listed
in section 667.5, subdivision (c)(17)—his presentence conduct credits are
limited under section 2933.1, subdivision (c) to 15 percent. (See People v.
Arevalo (2018) 20 Cal.App.5th 821, 827–830; People v. Daniels (2003)
106 Cal.App.4th 736, 739–741; § 4019.)
Following our remand, the trial court held a hearing on December 11,
2018 in which appellate counsel’s August 2018 letter and request for
additional presentence credits was discussed. Because trial counsel did not
have any pertinent documentation to support the request, the court put the
matter over to February 2019 to allow additional time for trial counsel to
consult with appellate counsel and provide evidence as to the status of the
San Francisco case. At the February 15, 2019 hearing, trial counsel appeared
without any documentation concerning the San Francisco matter. The trial
court denied counsel’s request for 251 days of additional presentence credits,
finding that appellant’s arrest in San Francisco was not based on the Sonoma
County warrant and no evidence was provided that appellant’s custody in
San Francisco was “dead time.” This appeal followed.
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DISCUSSION
There is no dispute that appellant’s September 2016 arrest in San
Francisco was not based on the September 2016 Sonoma County arrest
warrant. Nor do the parties dispute that he remained in custody in San
Francisco for 251 days before being returned to Sonoma County. The
question raised by this claim is whether appellant should receive presentence
credit for the 251 days he served in San Francisco County jail. Because the
facts regarding appellant’s actual time in custody are undisputed, his claim
presents solely a question of law. Accordingly, we apply the de novo standard
of review. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; People v.
Bravo (1990) 219 Cal.App.3d 729, 732.) Below we address appellant’s request
for conditional reversal and remand under section 1001.36.
A. Applicable Legal Principles
Section 2900.5, subdivision (a) provides, in pertinent part: “In all
felony and misdemeanor convictions, either by plea or by verdict, when the
defendant has been in custody, . . . all days of custody of the defendant,
including days served as a condition of probation in compliance with a court
order, . . . shall be credited upon his or her term of imprisonment . . . .”
However, subdivision (b) of section 2900.5 specifies that “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), italics added.)
As our Supreme Court explains, presentence custody stemming from
unrelated incidents may not be credited against a subsequent incarceration if
the charged conduct was not a cause of the earlier restraint. (People v.
Bruner (1995) 9 Cal.4th 1178, 1183 (Bruner).) The Bruner court held that
“where a period of presentence custody stems from multiple, unrelated
incidents of misconduct, such custody may not be credited against a
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subsequent formal term of incarceration if the prisoner has not shown that
the conduct which underlies the term to be credited was also a ‘but for’ cause
of the earlier restraint.” (Id. at pp. 1193–1194.) The court reasoned that
“[s]ection 2900.5 is not intended to bestow the windfall of duplicative credits
against all terms or sentences that are separately imposed in multiple
proceedings.” (Id. at p. 1191.)
The Supreme Court later recognized an exception to Bruner’s strict
causation rule in In re Marquez (2003) 30 Cal.4th 14 (Marquez). The
defendant in Marquez was released on bail on a charge of burglary in
Monterey County when he was arrested and charged in Santa Cruz County
for an unrelated matter. During his detention, Monterey County placed a
hold on his custody status. (Id. at p. 17.) After the defendant was convicted
in both counties, he received presentence credit for time spent in jail in each
county prior to sentencing. (Id. at p. 18.) The Santa Cruz County charges
were later dismissed after that conviction was reversed on appeal. The
defendant sought unsuccessfully to be awarded credit against his Monterey
County sentence for time he spent in custody between the day he was
sentenced in the Santa Cruz County case and the day he was sentenced in
the Monterey County case. (Ibid.)
The Supreme Court reversed. It found that once Monterey County
placed its hold on the defendant, “his custody was attributable to the charges
in both counties.” (Marquez, supra, 30 Cal.4th at p. 20.) Thus, once the
charges were dismissed in Santa Cruz County, “all custody following
Monterey County’s hold, including the period between petitioner’s sentencing
in Santa Cruz County and his Monterey County sentencing, is properly
characterized as ‘attributable to [the Monterey County] proceedings related
to the same conduct for which the defendant has been convicted.’ ” (Ibid.,
quoting § 2900.5, subd. (b).) The court rejected the People’s argument that
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the strict causation rule precluded this result, holding that the rule “is
applicable in cases involving the possibility of duplicate credit that might
create a windfall for the defendant.” (Marquez, at p. 23.) There was no
possibility of a duplicate custody credit award in Marquez because the Santa
Cruz charges had been dismissed. (Ibid.)
B. Appellant Is Not Entitled to Additional Presentence Credits
Appellant argues that he is entitled to credit against his Sonoma
County sentence for the 251 days of “dead time” he spent in custody in San
Francisco. “[W]here a defendant’s presentence custody arises from conduct
which is only partially attributable to the conduct for which he was convicted
and sentenced, he has the burden of proving entitlement to credit therefor.”
(In re Nickles (1991) 231 Cal.App.3d 415, 417.) As we explain, appellant has
not met his burden of establishing any entitlement to such credit.
Appellant does not dispute that his arrest in San Francisco was
unrelated to the Sonoma County arrest warrant. Nor can he, as the evidence
is uncontested that the Sonoma County trial court and probation department
were unaware of his detention until the April 25, 2017 hearing—
approximately 217 days after his arrest. Appellant nevertheless argues that
his custody is attributable to the Sonoma County proceedings because his
public defenders in San Francisco spent some time trying to understand why
he was rejected by Jericho and to find a better residential treatment
placement for him. We fail to see how these circumstances make his custody
attributable to the Sonoma County proceedings. There is no evidence that
Sonoma County placed a custody hold on appellant while he was detained in
San Francisco. Rather, appellant was arrested and jailed in San Francisco
for violating the terms of his probation in his unrelated San Francisco case.
But for his failure to comply with the terms of his probation in the San
Francisco case, he would not have been in custody in San Francisco. Because
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the Sonoma County offenses were not the cause of his 251-day incarceration
in San Francisco, he is not entitled to credit for those days in this case.
(§ 2900.5, subd. (b); Bruner, supra, 9 Cal.4th at pp. 1193–1194.)
Appellant’s claim suffers from a second defect: no evidence has been
presented that his San Francisco case was dismissed. Thus, the possibility
remains on this record that an award of presentence credit in these
proceedings may be duplicative of presentence credits awarded in the San
Francisco case, a situation barred under section 2900.5, subdivision (b). It
was appellant’s burden to demonstrate otherwise, and he failed to do so.
Appellant argues that he was placed on felony probation in the San
Francisco case in March 2015 and that a warrant had issued for his arrest
after he failed to report to the probation department. A minute order reflects
that on July 5, 2018, the San Francisco Superior Court recalled the bench
warrant that had been issued on May 31, 2017 and terminated probation as
unsuccessful. From this minute order, appellant contends that “the San
Francisco case was dropped” and therefore appellant’s 251 days in custody
constitutes “dead time” that should be credited against his Sonoma County
sentence. No evidence supports the claim. While the record on appeal
includes a copy of the San Francisco Superior Court’s minutes of the hearing
in which appellant’s probation was terminated as unsuccessful, there is no
reporter’s transcript. Apart from this single minute order, the record does
not include any other documentation of the San Francisco case.
There is some indication that appellant’s San Francisco case was not,
in fact, dismissed. At the February 15, 2019 hearing, appellant’s trial
counsel stated his “understanding” that appellant was “sentenced . . . on the
San Francisco case before they sent him back here” but gave no explanation
as to what sentence he received or what credits, if any, he was awarded. The
trial court observed that it had afforded appellant three months to present
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proof that his custody in San Francisco was attributable to the Sonoma
County proceedings or that his San Francisco case had been dismissed. The
trial court stated: “[I]f someone is going to get the credits that you are saying
they are entitled to [him], you need to show me he’s entitled to them. . . . [I]t
is all speculative. And I don’t have any information about San Francisco.”
Appellant has provided no evidence that his 251 days in custody in San
Francisco was “dead time” and has not demonstrated eligibility for additional
presentence credits.
Appellant’s reliance on Marquez and People v. Gonzalez (2006)
138 Cal.App.4th 246 (Gonzalez) is misplaced. As discussed above, the
Marquez court concluded that the defendant was entitled to presentence
credits against his Monterey County sentence because of Monterey County’s
custody hold and because there was no possibility that the defendant could be
awarded duplicate credits once the Santa Cruz charges had been dismissed.
(Marquez, supra, 30 Cal.4th at pp. 20, 23.) Neither of those factors appear in
this record. Thus, the possibility remains that an award of additional
presentence credits in this matter would bestow a windfall of duplicative
credits against appellant’s sentences in both the Sonoma County and San
Francisco proceedings.
In Gonzalez, the defendant pleaded guilty to domestic violence and was
placed on five years’ formal probation. (Gonzalez, supra, 138 Cal.App.4th at
pp. 248–249.) During the probationary period, he was charged with auto
theft and gun possession. (Id. at p. 249.) While in custody awaiting trial on
the auto theft and gun charges, he was charged with assaulting another
inmate. (Ibid.) The defendant was convicted of the auto theft and gun
charges, pleaded no contest in the assault case, and admitted the probation
violation. (Id. at pp. 249–250.) In awarding presentence credit, the trial
court calculated the time served from the date of the defendant’s arrest in the
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auto theft and gun case to the date of the assault, and allocated that credit to
the domestic violence case, which was nearing completion. (Id. at p. 250.)
The credit in the domestic violence case exceeded the sentence imposed in
that case, leaving a certain amount of “dead time” credit. (Id. at p. 251.)
The defendant argued, and the Court of Appeal agreed, that the credit
could be applied to the auto theft and gun case even though it was not the
sole reason for the presentence confinement. The court held that the custody
could be attributed to “ ‘multiple, unrelated causes.’ ” (Gonzalez, supra,
138 Cal.App.4th at p. 252.) It reasoned that the prohibition in section 2900.5,
subdivision (b) against duplicate credit would not be violated because the
defendant did not seek duplicate credit for the period of confinement.
(Gonzalez, at p. 252.)
Gonzalez is inapposite because appellant has not negated the
possibility that the 251 days he spent in custody in San Francisco will be (or
already has been) applied to his San Francisco County case. Because he has
not provided this court with sufficient proof to discount any risk of a “credit
windfall” (Bruner, supra, 9 Cal.4th at p. 1193), we conclude he has failed to
demonstrate his entitlement to the 251 days of custody credit in this case.
C. Appellant Is Entitled to a Hearing on His Eligibility for Pretrial
Mental Health Diversion
After this appeal was fully briefed, we granted appellant’s requests to
file a supplemental brief and motion requesting that we remand this matter
to the trial court for a mental health pretrial diversion eligibility hearing
under section 1001.36 and the Supreme Court’s recently issued opinion in
Frahs, supra, 9 Cal.5th 618. The Attorney General does not oppose this
request. We agree that a conditional remand is appropriate.
Effective June 27, 2018, “the Legislature enacted sections 1001.35 and
1001.36 as part of Assembly Bill No. 1810 (2017-2018 Reg. Sess.) . . . .
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[Citation.] Section 1001.36 gives trial courts the discretion to grant pretrial
diversion for individuals suffering from certain mental health disorders.
(§ 1001.36, subd. (a).)” (Frahs, supra, 9 Cal.5th at p. 626.) “The stated
purpose of the diversion statute ‘is to promote all of the following: [¶] (a)
Increased diversion of individuals with mental disorders to mitigate the
individuals’ entry and reentry into the criminal justice system while
protecting public safety. [¶] (b) Allowing local discretion and flexibility for
counties in the development and implementation of diversion for individuals
with mental disorders across a continuum of care settings. [¶] (c) Providing
diversion that meets the unique mental health treatment and support needs
of individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)” (Frahs, at
p. 626.)
Section 1001.36 defines “pretrial diversion” as “the postponement of
prosecution, either temporarily or permanently, at any point in the judicial
process from the point at which the accused is charged until adjudication, to
allow the defendant to undergo mental health treatment.” (§ 1001.36,
subd. (c).) If a defendant is charged with a qualifying offense,2 a trial court
may grant pretrial diversion if it finds all of the following: (a) the defendant
suffers from a qualifying mental disorder; (b) the mental disorder was a
significant factor in the commission of the charged offense; (c) in the opinion
of a qualified mental health expert, the defendant’s symptoms will respond to
mental health treatment; (d) the defendant consents to diversion and waives
his or her right to a speedy trial; (e) the defendant agrees to comply with
treatment as a condition of diversion; and (f) the defendant will not pose an
2A defendant may not be placed into a diversion program for the
charged offenses of murder, manslaughter, use of a weapon of mass
destruction, or certain enumerated sex offenses. (§ 1001.36, subd. (b)(2).)
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unreasonable risk of danger to public safety if treated in the community. (Id.,
subd. (b)(1)(A)-(F).)
If the six criteria in section 1001.36, subdivision (b)(1), are met, and if
the trial court “is satisfied that the recommended inpatient or outpatient
program of mental health treatment will meet the specialized mental health
treatment needs of the defendant” (§ 1001.36., subd. (c)(1)(A)), the court may
order diversion into an approved mental health treatment program for up to
two years. (Id., subds. (c)(1) & (c)(3).) If the defendant commits an additional
offense or otherwise performs unsatisfactorily in the diversion program, the
court may reinstate the criminal proceedings. (Id., subd. (d).) “If the
defendant has performed satisfactorily in diversion, at the end of the period
of diversion, the court shall dismiss the defendant’s criminal charges that
were the subject of the criminal proceedings at the time of the initial
diversion,” and “the arrest upon which the diversion was based shall be
deemed never to have occurred.” (Id., subd. (e).)
In Frahs, supra, 9 Cal.5th 618, the Supreme Court held that section
1001.36 “applies retroactively to cases in which the judgment is not yet final”
(id. at p. 624) because section 1001.36 mitigates the possible punishment for
a specific class of offenders with certain enumerated mental health
conditions, and there is no clear contraindication of legislative intent for
retroactive application. (Id. at pp. 630–637; see In re Estrada (1965)
63 Cal.2d 740, 742–748 [an amendatory statute lessening punishment for a
crime is presumptively retroactive, absent clear legislative intent for
prospective application, and applies to all defendants whose judgments are
not final at the time the statute becomes effective].)
While appellant was originally sentenced in September 2017 — before
the enactment of section 1001.36—the judgment was not yet final because his
earlier appeal was pending before this court at the time the ameliorative
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legislation went into effect. As the Supreme Court recently explained in
People v. McKenzie (2020) 9 Cal.5th 40, 46, “[i]n criminal actions, the terms
‘judgment’ and ‘ “sentence” ’ are generally considered ‘synonymous’ [citation],
and there is no ‘judgment of conviction’ without a sentence.” Thus, in the
context of Estrada retroactivity of an ameliorative statute, the relevant
inquiry is whether the “ ‘ “criminal proceeding . . . ha[s] not yet reached final
disposition in the highest court authorized to review it.” ’ ” (McKenzie, at
p. 45 (italics added).) Since this matter has not been reduced to final
judgment, appellant is entitled to the ameliorative provisions of section
1001.36.3
Turning to the merits, the parties agree that appellant has made a
prima facie showing of eligibility for diversion under section 1001.36 by
offering evidence of a qualifying mental disorder. We agree. As noted above,
the trial court initially suspended criminal proceedings for four months over
concerns that appellant was incompetent to stand trial. A psychiatrist was
appointed to conduct a formal mental health evaluation. The psychiatrist
found appellant incompetent, stating that he had a history of polysubstance
abuse and may have major underlying mental health issues. The
psychiatrist also noted that appellant was becoming increasingly delusional
around the time of the offenses and was developing a fascination with taking
cars. The record here affirmatively demonstrates that appellant appears to
3 Appellant has asked us to recall the remittitur issued on
November 30, 2018 in his prior appeal (Vidor I, supra, A152527) in order to
effectuate the conditional remand under section 1001.36. As we explain
above, it is unnecessary for us to do so. While we had previously affirmed the
conviction and remanded on a question of sentencing, our remittitur did not
render his conviction “final” as separate from his sentence. The pendency of
this appeal on a matter concerning his sentence makes this proceeding
nonfinal for purposes of remand.
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suffer from a qualifying mental disorder and that his underlying conviction
may have been a consequence of that disorder. A conditional remand under
Frahs is thus appropriate.
DISPOSITION
The trial court’s sentencing order is affirmed. We conditionally reverse
appellant’s convictions and sentence and direct the trial court to conduct a
hearing on appellant’s eligibility for mental health diversion under section
1001.36. If the court determines that appellant qualifies for pretrial mental
health diversion, then it may grant diversion. If appellant successfully
completes diversion, then the court shall dismiss the charges. If the court
determines that appellant is ineligible for diversion or declines to exercise its
discretion to grant diversion, or if appellant does not successfully complete
diversion, the trial court shall reinstate the convictions and reimpose his
prior sentence.
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_________________________
Sanchez, J.
WE CONCUR:
_________________________
Margulies, Acting P. J.
_________________________
Banke, J.
A156690 People v. Vidor
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