People v. Lashin CA3 ( 2014 )

Filed 6/20/14 P. v. Lashin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C072308
Plaintiff and Respondent, (Super. Ct. Nos. 62-096644,
62-097616, 62-097795,
v. 62-098834)
ANDRE LASHIN,
Defendant and Appellant.
Pursuant to an April 2010 agreement resolving three superior court cases,
defendant Andre Lashin pleaded no contest to receiving stolen property (§ 496, subd.
(a)),1 second degree burglary (§ 459), corporal injury of a spouse or cohabitant (Pen.
Code, § 273.5, subd. (a)), and being under the influence of a controlled substance (Health
& Saf. Code, § 11550, subd. (a)). He admitted that he personally inflicted great bodily
1 Undesignated statutory references are to the Penal Code.
1
injury (§ 12022.7, subd. (e)) in the commission of the corporal injury. In exchange for
his pleas and admission, several charges were dismissed. At sentencing in May 2010,
execution of a prison sentence of 10 years four months was suspended, and defendant
was placed on formal probation for five years. (People v. Lashin (July 2, 2012,
C065713) [nonpub. opn.], slip opn. at pp. 1-2 (Lashin).)2 Defendant was ordered to pay,
among other things, a $400 assessment to the domestic violence fund, a $100 assessment
to the Placer Women’s Center, and a $350 fee for the cost of preparing the probation
report. (Id. at p. 3.)
In a prior appeal to this court, defendant contended the trial court’s written
probation order did not accurately reflect the fines and fees it had assessed when
pronouncing sentence. He also claimed the court was not permitted to impose a fine in
addition to ordering him to make payments to a battered women’s shelter. Defendant’s
final contention was that the court did not assess his ability to pay before ordering
payment of the costs of preparing the presentence report and probation supervision.
(Lashin, supra, at p. 2.)
We remanded the matter to the trial court for clarification of its order. (Lashin,
supra, at pp. 2, 7.) Specifically, our disposition directed the trial court to “specify
whether defendant is required to pay the costs of preparing a presentence report,
probation supervision, and drug testing. The court is directed to prepare an amended
probation order, or an amended abstract of judgment if defendant is no longer on
probation, containing its determinations in this regard, in addition to correcting the
amount of the restitution fine, the suspended probation revocation fine, and the payment
2 We treated defendant’s motion for judicial notice of our records in case No.
C065713 as a motion to incorporate that case by reference and, as such, granted the
motion.
2
to the battered women’s shelter, and specifying the statutory basis for all fines, fees, and
costs imposed.” (Lashin, supra, at pp. 7-8.)
In August 2012, defendant resolved a fourth case, pleading no contest to
misdemeanor driving under the influence of methamphetamine in exchange for dismissal
of several related counts and allegations. Defendant admitted, among other things, that
his plea constituted a violation of his probation in the three earlier cases.
In September 2012, the trial court ordered execution of the prison sentence;
imposed a $200 restitution fine, a $40 court security fee and a $30 criminal assessment
fee; and ordered execution of a $200 probation revocation restitution fine. In compliance
with our remittitur, the matter was referred to the probation department for the
preparation of memoranda on credit, fines, and fees. On the fourth case, the trial court
sentenced defendant to jail for 90 days concurrent with the prison sentence.
In October 2012, the trial court awarded presentence credits in accordance with a
memorandum from the probation department. Departing from the memorandum’s
recommendation, the court declined to impose a $1,200 probation supervision fee,
substance abuse testing fees, a $25 administrative screening fee, and a base fine of $100.
The court orally ordered defendant to pay a $200 restitution fine (§ 1202.4, subd. (b)), a
$200 probation revocation restitution fine (§ 1202.44), a $120 court operations fee
(§ 1465.8, subd. (a)(1)), a $120 court facilities assessment (Gov. Code, § 70373), a $350
presentence probation report fee, a $20 state surcharge (§ 1465.7), a $400 domestic
violence fund fee (§ 1203.097, subd. (a)(5)), and a $400 battered women’s shelter fee
(§ 1203.097, subd. (a)(11)(A)).
Defendant again appeals contending (1) the $20 state surcharge must be stricken
because the trial court struck the base fine to which it attaches; the People concede this
point; (2) the trial court improperly increased the amount of the battered women’s shelter
fee from $100 to $400; (3) the trial court erroneously ordered him to pay various fees
without properly evaluating his ability to pay; to the extent the issues have been forfeited,
3
defendant’s trial counsel rendered ineffective assistance; (4) the abstract of judgment
does not accurately reflect the trial court’s oral orders; the People concede the point in
part; and (5) the trial court failed to award him all the custody credit to which he is
entitled. We modify the judgment.
DISCUSSION3
I
State Surcharge
Defendant contends, and the People concede, the $20 state surcharge (§ 1465.7)
must be stricken because, in its October 2012 order, the trial court struck the $100 base
fine.
Section 1465.7, subdivision (a) provides: “A state surcharge of 20 percent shall be
levied on the base fine used to calculate the state penalty assessment as specified in
subdivision (a) of Section 1464.” In this case, the relevant “base fine” was the $100 fine
struck by the trial court. Because the court’s action left no base fine upon which a 20
percent surcharge could be levied, the $20 state surcharge must be stricken.
II
Battered Women’s Shelter Fee
Defendant contends the trial court improperly increased his payment to the
battered women’s shelter from $100 to $400 in its October 2012 order. We disagree.
A. Background
The presentence report contained recommended terms and conditions of probation,
including a $400 payment to a battered women’s shelter. (Lashin, supra, at p. 2.)
At the first sentencing in May 2010, the trial court stated it was “going to adopt
the recommendations of probation.” Without indicating that it was, in fact, deviating
3 We briefly summarize the facts of defendant’s offenses in our discussion of
presentence credits, post.
4
from that recommendation, the court ordered defendant to pay fines and fees including a
“$100 assessment to the Placer Women’s Center.” The court later reiterated that it would
“adopt the fines as recommended by probation.”
In our prior opinion we noted that, “contrary to the trial court’s statement that it
was adopting the recommendations of probation, it orally imposed a payment to a
battered women’s shelter . . . that differed from the amount[] recommended in the
presentence report.” (Lashin, supra, at p. 4, fn. omitted.) We later reiterated that the
court had imposed “a battered women’s shelter fee that was lower than recommended in
the presentence report.” (Lashin, supra, at p. 6.)
Defendant contended the trial “court was not permitted to impose a fine in
addition to ordering him to make payments to a battered women’s shelter.” (Lashin,
supra, at p. 2.) We agreed, explaining that “the court was not authorized to order
defendant to pay both a fine and an ‘assessment’ to a battered women’s shelter.
(§ 1203.097, subd. (a)(11)(A).)”4 (Lashin, supra, at p. 5, original italics.) We affirmed
defendant’s convictions and remanded the matter to the trial court with directions to,
among other things, “correct[] the amount of . . . the payment to the battered women’s
shelter.” (Lashin, supra, at pp. 7-8.)
On remand, the trial court imposed the battered women’s shelter fee in the
recommended amount of $400 and struck the $100 base fine.
B. Analysis
The parties agree that Lashin identified the order of both a $100 base fine and a
$100 payment to a battered women’s shelter as an unauthorized sentence. On remand,
the trial court imposed only the battered women’s shelter payment.
4 The statute states in relevant part that the “conditions of probation may include, in
lieu of a fine, . . . [t]hat the defendant make payments to a battered women’s shelter.”
(§ 1203.097, subd. (a)(11)(A).)
5
But our opinion also identified another defect with “the payment to the battered
women’s shelter.” We noted that, “contrary to the trial court’s statement that it was
adopting the recommendations of probation, it orally imposed a payment to a battered
women’s shelter . . . that differed from the amount[] recommended in the presentence
report.” (Lashin, supra, at p. 4, italics added, fn. omitted.) Because the trial court’s
intent was unclear, we remanded the matter for clarification. In its October 2012 order,
the trial court resolved the ambiguity by imposing the $400 amount recommended by
probation.
Defendant counters that he should not face the risk that, in the course of correcting
an unauthorized sentence, the trial court would “increase” a portion of his punishment
“above that that was originally imposed.” Upon remand, the trial court clarified that it
meant to impose the $400 amount at the first sentencing hearing. Because this is a
clarification of what the trial court intended to order, there was no increase in
punishment. There was no error.
III
Ability to Pay
Defendant contends the trial court erroneously ordered him to pay the $400
domestic violence fee, the $400 battered women’s shelter fee, and the $350 probation
report fee without determining his ability to pay. He claims that, to the extent his trial
counsel forfeited the issue by failure to object at the October 1, 2012, hearing, counsel
rendered ineffective assistance. We consider the fees in turn.
A. Background
In the prior appeal, defendant contended the trial court did not assess his ability to
pay before ordering payment of the costs of preparing the presentence report and
probation supervision. (Lashin, supra, at p. 2.) In response, this court noted that both the
“cost of presentence report and probation supervision” (§ 1203.1b) and the “battered
women’s shelter assessment” are subject to defendant’s ability to pay. (Lashin, supra, at
6
pp. 5-6.) We noted that defendant had not been “fully advised of his right to a hearing”
on the issue of ability to pay probation costs. (Lashin, supra, at p. 5.) In response to the
People’s claim that defendant forfeited the issue, we stated that “it may have been the
trial court’s intent not to impose the remaining costs and fees. We note that, in response
to a request by defendant’s attorney at the plea hearing, the court stated it would consider
at sentencing waiving the fee for a presentence report. The court’s intent could also be
inferred from its imposition of a battered women’s shelter assessment that was lower than
recommended in the presentence report.” (Lashin, supra, at pp. 5-6.) We concluded the
trial court’s “intent is unclear, and the matter must be remanded for clarification.”
(Lashin, supra, at p. 6.)
In our disposition, we directed the trial court to “specify whether defendant is
required to pay the costs of preparing a presentence report” and to “correct[] . . . the
payment to the battered women’s shelter.” (Lashin, supra, at pp. 7-8.)
B. Domestic Violence Fee
Our disposition in Lashin did not direct the trial court to reconsider the $400
domestic violence fee. (Lashin, supra, at pp. 7-8.) Therefore, defendant’s trial counsel
was not ineffective for having failed to make a meritless request to consider a matter
beyond the scope of our remand. (People v. Stratton (1988) 205 Cal.App.3d 87, 97.)
C. Battered Women’s Shelter Fee
Section 1203.097, subdivision (a)(11)(B) provides in relevant part: “For any order
to . . . make payments to a battered women’s shelter, . . . the court shall make a
determination of the defendant’s ability to pay. Determination of a defendant’s ability to
pay may include his or her future earning capacity. A defendant shall bear the burden of
demonstrating lack of his or her ability to pay. Express findings by the court as to the
factors bearing on the amount of the fine shall not be required.”
At the October 1, 2012, hearing, defendant’s trial counsel did not attempt to
demonstrate that defendant lacked the ability to pay the battered women’s shelter fee
7
when it was imposed in May 2010. Counsel’s omission forfeits the claim on appeal.
(People v. Scott (1994) 9 Cal.4th 331, 354; People v. Valtakis (2003) 105 Cal.App.4th
1066, 1072 (Valtakis) [probation costs]; see In re Sheena K. (2007) 40 Cal.4th 875, 881.)
The record suggests a satisfactory reason for trial counsel’s omission. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).) At the September 17,
2012, judgment and sentencing hearing, counsel had argued that defendant should be
placed on probation. Counsel noted that defendant had “employment promised him
through Western Contemporary Design. It will be a construction job, and that is his
background.” Defendant’s Narcotics Anonymous sponsor had written to the court that
defendant “has a job lined up, a solid plan of recovery and the tools he needs to become a
productive member of society.”
At the October 1, 2012, hearing, defendant’s trial counsel could have understood
that the trial court’s task on remand was to evaluate defendant’s “future earning
capacity,” and his ability to pay, as they existed at sentencing in May 2010. (§ 1203.097,
subd. (a)(11)(B).) Defendant’s subsequent incarceration in jail and then in prison had no
bearing on that issue.5
Trial counsel could also have understood that defendant’s construction
background, which culminated in the September 2012 job offer, had preexisted the May
2010 hearing, if for no other reason than defendant spent most of the time after that
hearing in custody. Thus, trial counsel could have understood that defendant had a
“future earning capacity” in May 2010, within the meaning of section 1203.097,
5 Because defendant’s subsequent incarceration in jail and then in prison are
irrelevant to the trial court’s reconsideration of his ability to pay as of May 2010, we need
not join the parties’ debate about defendant’s ability to earn while in prison. Nor need we
consider whether the domestic violence fee or the battered women’s shelter fee can be
collected from prison wages.
8
subdivision (a)(11)(B). Counsel was not required to believe that, prior to his
participation in Narcotics Anonymous, defendant had no ability to work or earn.
Because the record on appeal sheds no light on why counsel failed to raise the
battered women’s shelter issue, and there could be a satisfactory explanation, the claim of
ineffective assistance is more appropriately decided in a habeas corpus proceeding.
(Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
This leaves defendant’s argument that, notwithstanding his trial counsel’s silence,
our remand order directed the trial court to consider the ability to pay issue and its failure
to do so was error. The argument has no merit.
As we have seen, the statute provides that “[e]xpress findings by the court as to the
factors bearing on the amount of the fine shall not be required.” The defendant’s “lack of
his or her ability to pay” is one of those factors. (§ 1203.097, subd. (a)(11)(B).) Thus,
the trial court was not required to make an express finding on ability to pay.
Although the evidence of defendant’s background in construction and his 2012 job
offer had not been before the court in May 2010, our recognition in Lashin that defendant
had not been fully advised of his right to a hearing on ability to pay probation costs
implied that further evidence bearing upon that issue could be received at subsequent
proceedings. (Lashin, supra, at p. 5.) As it turned out, defendant presented evidence and
argument on the issue in an effort to persuade the trial court to reinstate him on probation.
Thus, by the time of the October 1, 2012, hearing, the trial court had an indication of
defendant’s background and earning capacity in May 2010. The trial court’s implied
finding that defendant had the ability to pay is supported by substantial evidence.
D. Presentence Probation Report Fee
We previously noted that the cost of the presentence report is subject to
defendant’s ability to pay (§ 1203.1b), and that defendant must be fully advised of his
right to a hearing on the issue. (Lashin, supra, at p. 5.) Lashin noted that the “issue may
be deemed forfeited for purposes of appeal if a defendant fails to object in the trial court.”
9
(Ibid., citing Valtakis, supra, 105 Cal.App.4th at p. 1072.) On the record then before us,
we declined to find forfeiture because “it may have been the trial court’s intent not to
impose” the probation report fee. (Lashin, supra, at p. 5.)
The record of the October 1, 2012, hearing is different: as before, defendant failed
to object in the trial court; but this time, the court unequivocally expressed its intent to
impose the $350 probation report fee. On this record, we conclude the issue was
forfeited. (People v. Scott, supra, 9 Cal.4th at p. 354; Valtakis, supra, 105 Cal.App.4th at
p. 1072; In re Sheena K., supra, 40 Cal.4th at p. 881.)
For reasons we have explained, defendant’s trial counsel could have believed, at
the time probation was granted, that defendant had the ability to obtain a job and to
continue working for the year following the hearing. (§ 1203.1b, subd. (e).) The fact this
“one year time limit had already passed” by the time of the October 2012 hearing is
irrelevant because the trial court’s task was to assess defendant’s ability to pay as of May
2010.
Because the record on appeal sheds no light on why counsel failed to raise the
probation report fee issue, and there could be a satisfactory explanation, the claim of
ineffective assistance is more appropriately decided in a habeas corpus proceeding.
(Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
IV
Abstract of Judgment
Defendant contends the abstract of judgment does not accurately reflect the trial
court’s oral orders regarding restitution fines. We consider defendant’s contentions in
turn.
A. Procedural Background
At the original sentencing hearing, the trial court orally set the restitution fine and
the probation revocation restitution fine at $100, not $200; and it pronounced just one
restitution fine and one probation revocation restitution fine for all three cases. Then,
10
following our remittitur, the court orally pronounced one $200 restitution fine for all
three cases, one $200 probation revocation restitution fine for all three cases, and no
parole revocation restitution fines, even though defendant was committed to prison for a
violent felony.
The April 23, 2013, amended abstract of judgment includes the judgment entered
in the three felony cases that were at issue in Lashin. The new case, sentenced as a
misdemeanor, is not included on the abstract. The abstract lists a $200 restitution fine, a
$200 executed probation revocation restitution fine, and a $200 stayed parole revocation
restitution fine in each of the three superior court cases.
B. Relevant Legal Principles
Section 1202.4, subdivision (b) provides: “In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.” (See People v. Villalobos (2012) 54 Cal.4th 177, 180-181.)
Here, the trial court did not state on the record any compelling and extraordinary reasons
for omitting any restitution fines. Thus, the court had a mandatory duty to impose a
restitution fine in each case. (People v. Hanson (2000) 23 Cal 4th 355, 362.)
However, the phrase “[i]n every case where a person is convicted of a crime” is
ambiguous where, as here, cases were separately filed, but joined together for plea and
sentencing. (People v. Ferris (2000) 82 Cal.App.4th 1272, 1277.) Given this ambiguity,
Ferris concluded that the construction favoring the defendant must apply and only a
single restitution fine could be imposed in a single case. (Ibid.; see People v. Schoeb
(2005) 132 Cal.App.4th 861, 864.)
When defendant committed the offenses in February and March 2010, the
minimum amount of the restitution fine was $200. (Stats. 2009, ch. 454, § 1.)
Imposing and staying a probation revocation restitution fine (§ 1202.44) is
mandatory where a sentence includes a period of probation. Vacating the stay is
11
mandatory upon revocation of probation with a state prison sentence. (People v.
Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2.) “[B]y the express terms of the
statute, the probation revocation fines imposed under section 1202.44 must be in the
same amount as the restitution fines imposed under section 1202.4.” (People v. Perez
(2011) 195 Cal.App.4th 801, 805.)
“Under section 1202.45, a trial court has no choice and must impose a parole
revocation fine equal to the restitution fine whenever the ‘sentence includes a period of
parole.’ ” (People v. Smith (2001) 24 Cal.4th 849, 853 (Smith), original italics.)
A restitution fine is triggered by conviction of a criminal offense and survives the
revocation of probation. (§ 1202.4, subd. (b); People v. Chambers (1998) 65 Cal.App.4th
819, 822.)
C. Increasing Restitution Fine from $100 to $200
Defendant claims the restitution fine cannot be increased from $100 to $200. He
notes that the People, in their brief in the prior appeal, had refrained from arguing the
$100 restitution fine should be increased, citing People v. Tillman (2000) 22 Cal.4th 300,
303 (Tillman). In Tillman, the trial court failed to “state on the record its reasons for not
imposing the restitution fines. (Ibid.; see Smith, supra, 24 Cal.4th at p. 853.) Similarly
here, at the first sentencing hearing, the trial court failed to state on the record its reason
for imposing less than the minimum fine of $200. Because the prosecution had not
objected, the People conceded that the error had been forfeited under Tillman.
Notwithstanding the forfeiture, our disposition directed the trial court to “correct[]
the amount of the restitution fine [and] the suspended probation revocation fine.”
(Lashin, supra, at p. 7.) On remand, the trial court properly imposed “the state restitution
fine of $200.” This rendered moot the court’s earlier failure to state reasons for a lesser
fine as well as the People’s earlier concession.
Defendant counters that, if our direction to “correct[] the amount of the restitution
fine” includes raising it to the minimum $200, “that order was erroneous and should be
12
corrected in this appeal.” However, his reasons for so contending are not set forth clearly
in his reply brief. We find no error.
D. Number of Restitution Fines
Defendant claims the abstract of judgment erroneously reflects three restitution
fines rather than one. He argues the trial court was entitled to treat the three superior
court cases as one case for purposes of the restitution fine (People v. Ferris, supra, 82
Cal.App.4th at p. 1277; People v. Schoeb, supra, 132 Cal.App.4th at p. 864), and the oral
pronouncement of the single fine prevails over the three fines listed on the amended
abstract (People v. Zackery (2007) 147 Cal.App.4th 380, 385). The People do not dispute
this contention.
At the first sentencing hearing and again on remand, the trial court consistently
imposed just one restitution fine. It follows from our discussion that the amended
abstract is in error to the extent it reflects more than one probation revocation restitution
fine and more than one suspended parole revocation restitution fine.
E. Amount of Probation Revocation Restitution Fine
In his opening brief, defendant contends our conclusion that the trial court
corrected the restitution fine to $200 requires that the abstract be further corrected to
show a single $200 probation revocation restitution fine.
The People respond that, because the probation revocation restitution fine had
been imposed in the amount of $100, and on remand the court stated it would impose the
fine that previously had been suspended, the “fine should be limited to $100.”
In his reply brief, defendant “agrees with” the People’s conclusion that the
probation revocation restitution fine “must be limited to $100 even though, under normal
circumstances, the base restitution fine and the probation [revocation] restitution fine
must be equal.”
The problem with the People’s argument, subsequently accepted by defendant, is
that it is contrary to our remand order to “correct[] the amount of . . . the suspended
13
probation revocation fine.” (Lashin, supra, at p. 7.) The obvious basis for correction is
that the probation revocation restitution fine must equal the restitution fine, as the trial
court on remand determined it. (People v. Perez, supra, 195 Cal.App.4th at p. 805.)
Since the court determined the restitution fine to be $200, we modify the judgment to
impose a $200 probation revocation restitution fine. Because the amended abstract
serendipitously showed the probation revocation restitution fine to be $200, no correction
of the amount is necessary.
F. Parole Revocation Restitution Fine
Defendant contends the abstract of judgment must be modified to reflect a single
parole revocation restitution fine. (§ 1202.45.) The People respond that the trial court
did not orally impose any such fine and the prosecutor did not object to its omission.
Thus, the People assert that the parole revocation restitution fines should be stricken from
the abstract of judgment. In his reply brief, defendant does not adopt the People’s
argument; instead, he reiterates that “there should be . . . a stayed $100 parole revocation
restitution fine.”
The People’s argument appears to invoke the Tillman rationale without identifying
a statutory basis for the trial court to impose the restitution fine while, in an exercise of its
discretion, omitting the parole revocation restitution fine. (Tillman, supra, 22 Cal.4th at
p. 303.) No such discretion appears. “Under section 1202.45, a trial court has no choice
and must impose a parole revocation fine equal to the restitution fine whenever the
‘sentence includes a period of parole.’ ” (Smith, supra, 24 Cal.4th at p. 853, original
emphasis.)
V
Presentence Credit
A. Background
On February 5, 2010, defendant received a computer that was stolen and which he
knew was stolen (case No. 62-096644). He was taken into custody that day and was in
14
presentence custody from February 5 through February 9, 2010, a period of five days.
Thereafter, he was in presentence custody for a period that was credited on the spousal
injury case.
On March 22, 2010, defendant entered a commercial building with the intent to
commit larceny and he stole items from the building (case No. 62-097616). He was
taken into custody that day and was in presentence custody from March 22, 2010,
through March 26, 2010, a period of five days. Thereafter, he was in presentence custody
for a period that was credited on the spousal injury case.
On March 31, 2010, defendant assaulted his cohabitant and personally inflicted
great bodily injury on her (case No. 62-097795). He was taken into custody that day and
was in presentence custody from March 31, 2010, through his placement on probation on
May 12, 2010; and from the revocation of his probation on June 17, 2010, through the
hearing on October 1, 2012.
On May 15, 2010, defendant drove erratically and exhibited signs and symptoms
of being under the influence of a controlled substance (case No. 62-098834). He was
taken into custody that day.
On May 24, 2010, the probation department filed a petition to revoke defendant’s
probation in the first three cases based upon his commission of the offenses alleged in the
fourth case.
On June 17, 2010, defendant’s probation in the first three cases was summarily
revoked.
Defendant was sentenced to prison in September 2012, and the court addressed the
presentence credit issue on October 1, 2012.
The September 17, 2012, abstract of judgment awarded defendant 881 days’
custody credit and 132 days’ conduct credit.
15
B. Appellate Arguments and Trial Court Motion for Correction
In his opening brief, defendant contends the trial court erred when it “accepted the
probation department’s calculations and did not begin to credit [him] with time towards
his prison sentence until June 17, 2010,” the day his probation was revoked. He claims
entitlement to 901 days’ custody credit and 135 days’ conduct credit.
On the day the opening brief was filed, defendant’s appellate counsel filed a
motion in the trial court to correct his custody credits. The motion presented the same
argument set forth in the opening brief. Sixteen days later, the trial court issued an order
amending custody credits and an amended abstract of judgment. The court agreed that
credits should be amended but did not concur with counsel’s method of calculation. The
court explained: “One of the grounds for the violation of felony probation in [the
assault/corporal injury case] was the misdemeanor conduct in [the fourth case]. The
custody credits for that misdemeanor conduct should have been applied to the felony
violation of probation and not to the concurrent misdemeanor case. Accordingly, the
court orders that the custody credits of 33 days originally assigned to [the fourth case] be
reassigned to [the assault/corporal injury case].” Thus, the court awarded defendant 914
days’ custody credit and 137 days’ conduct credit on the assault/corporal injury case, five
days’ custody credit and four days’ conduct credit on the burglary case, and five days’
custody credit and four days’ conduct credit on the receiving stolen property case.
Three days after the supplemental clerk’s transcript of the order and amended
abstract was filed in this court, the People filed a respondent’s brief contending that
defendant is entitled to 891 days’ custody credit and 133 days’ conduct credit. The
respondent’s brief does not address the order correcting credits, and the People have not
cross-appealed from the order or otherwise addressed the trial court’s action.
Citing People v. Pruitt (2008) 161 Cal.App.4th 637, 639 and People v. Huff (1990)
223 Cal.App.3d 1100, 1104, the People argue defendant was not entitled to presentence
16
credit on the first three cases from May 15, 2010, the date of his commission of and arrest
on the fourth case, until June 17, 2010, the date his probation in those cases was revoked.
The People further contend defendant is entitled to five days’ credit for his
custody on the receiving stolen property case (Feb. 5, 2010, to Feb. 9, 2010), and five
days’ credit for his custody on the second degree burglary case (Mar. 22, 2010, to Mar.
26, 2010).
In his reply brief, defendant concedes he “forgot to add in the ten additional days
attributed to the other two charges.” Defendant argues that, because the People have not
responded to the most recent credit ruling, there is no reason to disturb the determination
that he is entitled to an additional 33 days’ custody credit. Finally, defendant concedes
the trial court erred when it calculated his conduct credit attributable to this custody
pursuant to section 4019 rather than section 2933.1.
C. Credit for Burglary and Receiving Stolen Property Cases
The People contend, and defendant agrees, he is entitled to five days’ credit for his
custody on the receiving stolen property case (Feb. 5, 2010, to Feb. 9, 2010), and five
days’ credit for his custody on the second degree burglary case (Mar. 22, 2010, to Mar.
26, 2010). Part 16 of the April 23, 2013, amended abstract of judgment shows that
defendant has been awarded the disputed credit. He does not dispute that this credit is
attributable to the foregoing cases, as opposed to the assault/corporal injury case. No
error appears.
Defendant correctly notes that, because these cases were sentenced consecutive to
a term for a violent felony, the conduct credit attributable to these 10 days of custody
must be calculated pursuant to section 2933.1, not section 4019.
D. Reallocation of Credit from the Misdemeanor to the Felony
Defendant argues that, because the People have not responded to the trial court’s
most recent credit ruling, there is no reason to disturb the court’s determination that he is
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entitled to an additional 33 days’ custody credit from his May 15, 2010, arrest through
the June 17, 2010, revocation of his probation. We agree.
DISPOSITION
The judgment is modified by striking the $20 state surcharge, imposing a $200
probation revocation restitution fine and a suspended $200 parole revocation restitution
fine, and awarding defendant one day’s conduct credit in case No. 62-097616, and one
day’s conduct credit in case No. 62-096644. As modified, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment, corrected to show one
$200 restitution fine, one $200 probation revocation restitution fine, one $200 suspended
parole revocation restitution fine, and indicate that all conduct credits are calculated
pursuant to Penal Code section 2933.1. The trial court is directed to forward a certified
copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
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