People v. Saavedra

Filed 6/9/22 P. v. Saavedra
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082030
Plaintiff and Respondent,
(Super. Ct. No. 20CR-01448)
v.
RAMON APODACA SAAVEDRA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Steven K.
Slocum, Judge.
Nancy Wechsler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers and Julie A.
Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Smith, J. and Meehan, J.
In this appeal, defendant Ramon Apodaca Saavedra only challenges the sentence
imposed. Following our review of the relevant legal standards governing the calculation
of his sentence, along with a consideration of recent legislative changes, we find no error
in the sentence imposed. We, therefore, affirm the judgment, and direct the trial court to
prepare an amended abstract of judgment accurately reflecting the full sentence imposed
on defendant at the sentencing hearing, along with the presentence credits earned at the
time of sentencing.
SUMMARY
Because defendant raises no claims addressing his conviction, we restrict this
summary to the facts necessary to resolve the challenges to his sentence.
On September 4, 2020, defendant was found guilty by a jury of committing
one count of vandalism exceeding $400, a felony (Pen. Code,1 § 594, subd. (a)), a
second count of resisting, delaying, or obstructing a peace officer, a misdemeanor (§ 148,
subd. (a)(1)), and a third count of driving with a suspended or revoked driver’s license, a
misdemeanor (Veh. Code, § 14601.2, subd. (a)) (case No. 20CR-01448; “case 448”). At
the time of his conviction, defendant was also subject to another unresolved case in
which he was charged with driving with a blood-alcohol level of .08 percent or higher
(Veh. Code, § 23152, subd. (b)) (case No. 20CR-01433; “case 433”). Three additional
cases against defendant were also pending at this time.2
On November 5, 2020, defendant was sentenced in both case 448 and case 433,
pursuant to a negotiated plea agreement. After accepting the plea, the trial court
dismissed the three separate cases that were still pending against defendant.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 These cases are identified in the record as Merced County Superior Court case
Nos. 20CR-02176, 20CR-01469, and 20CR-00817.
2.
Once defendant admitted his blood-alcohol level was .15 percent or higher in
case 433, the trial court sentenced defendant to 364 days in county jail. The court gave
defendant 61 days of actual credit and 60 days of local conduct credit for a total of
121 days of credit to be applied against the sentence in case 433. The court noted this
sentence would be served concurrently with the sentence imposed in case 448.
In case 448, the trial court chose the upper term of three years in prison for
count 1. For count 2, the trial court sentenced defendant to 364 days, and for count 3, the
court imposed a sentence of 180 days. The court stated the terms in case 448 would be
served consecutively. The court then awarded defendant 173 days of credit for actual
days already served and 172 days of local conduct credit for a total of 345 days of credit
in case 448.
A notice of appeal was filed on November 9, 2020. Following a request from
defendant to correct the calculation of presentence credits, the trial court issued a ruling
on July 26, 2021, concluding there was no error.3
DISCUSSION
I. The Application of Presentence Credits
Defendant’s primary challenge in this appeal concerns how presentence credits
were calculated and applied to his sentence. Again, defendant’s sentence involved
two separate cases. In case 448, he was found guilty by a jury of three separate counts.
Case 433 involved a no contest plea by defendant to a violation of the Vehicle Code.
As noted above, the trial court designated how the presentence credits would be
applied when sentencing defendant on November 5, 2020. After the notice of appeal was
filed, defendant submitted a letter brief to the trial court asking for a recalculation of the
presentence credits, alleging he was entitled to 213 additional days of presentence credits.
3 Section 1237.1 requires that a defendant seek a correction of presentence credits in
the trial court before the issue can be raised on appeal. Section 1237.1 allows this request
to be made after the notice of appeal has already been filed, as was the case here.
3.
The trial court denied this request, concluding the claim seeking additional credits was
not supported by the record.
A. Appellant Has Not Shown He Is Entitled to Additional Credits
The statutory language governing the calculation of credits is found in
section 2900.5. That statute provides “[i]n all felony and misdemeanor convictions,
either by plea or by verdict, when the defendant has been in custody,” the days
constituting custody should be credited to the period of confinement for the crime
resulting in the conviction. (§ 2900.5, subds. (a)–(b).)
While the language of section 2900.5 is often considered confusing in application,
some useful examples have emerged from case law. For instance, courts have concluded
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 crime. (People v.
Bruner (1995) 9 Cal.4th 1178, 1180.) A defendant is also not entitled to presentence
credits for a period of custody served for an unrelated charge where the defendant cannot
show he or she would have been at liberty during that particular period but for the
restraint imposed by the new charge later resulting in a conviction. (In re Joyner (1989)
48 Cal.3d 487, 489 (Joyner).) Moreover, when presentence custody stems from multiple
unrelated incidents, custody may not be credited against more than one case unless each
case is a “but for” cause of the incarceration. (In re Marquez (2003) 30 Cal.4th 14, 21; In
re Rojas (1979) 23 Cal.3d 152, 156.)
Defendant was sentenced to three consecutive terms in case 448, and a single term
in case 433. The court then ordered the sentence for case 433 to be served concurrently
with the total of the three terms imposed for case 448. We agree that because of the
concurrent terms, defendant should get the benefit of both sets of presentence credits
assigned to the terms being served concurrently. (§ 2900.5, subd. (b).) Defendant,
however, also contends he is entitled to additional presentence credits other than those
awarded.
4.
The Supreme Court has held where presentence custody might stem from multiple
unrelated incidents, a period of custody can only be credited against a subsequent formal
sentence if the prisoner can show the time to be credited was related to the incident for
which the sentence was imposed. (People v. Bruner, supra, 9 Cal.4th at pp. 1193–1194.)
Again, when considering a period of confinement, we must consider whether the prisoner
would have been free from custody “but for” the incident that resulted in the sentence.
(Joyner, supra, 48 Cal.3d at p. 489.) The burden is on the defendant to establish any
entitlement to presentence custody credits. (People v. Jacobs (2013) 220 Cal.App.4th 67,
81.)
In this case, the trial court determined portions of defendant’s incarceration
between February and April were attributed to both case 433 and case 448. Specifically,
for case 448 defendant received 66 days of actual time credit for his incarceration
between February 20, 2020, and April 25, 2020. For a slightly shorter period between
February 25, 2020, and April 25, 2020, defendant was also credited with 61 days of
actual time credit for case 433. For the period between May 26, 2020, and September 9,
2020, the trial court determined defendant was entitled to 107 days of actual time credit
for case 448 only.
Without pointing to any clear evidence, defendant asks this court to simply accept
a “ ‘reasonable inference’ ” that his custody from May 26, 2020, to September 9, 2020,
was also related to case 433. We note defendant fails to acknowledge that any additional
periods of confinement may have been due to the charges pending in the three separate
cases that were ultimately dismissed at the time of sentencing. This is the uncertainty
created by “inferences” rather than proof.
Defendant was responsible for showing the presentence custody starting in
May 2020 was related to and would not have occurred “but for” the charges pending in
both case 433 and case 448. (See Joyner, supra, 48 Cal.3d at p. 489.) Defendant has not
5.
made an adequate showing demonstrating the trial court’s calculation of his presentence
custody credits was incorrect.
B. The Abstract of Judgment Must Be Amended
The first amended abstract of judgment issued in this case does not accurately
reflect the sentence that was imposed at the time of sentencing, including the custody
credits. We are only aware of the sentence imposed in case 433 with its 121 days of
presentence credits because of the transcript of the sentencing hearing.
“When a person is convicted of two or more crimes, whether in the same
proceeding or court or in different proceedings …, the second or other subsequent
judgment upon which sentence is ordered to be executed shall direct whether the terms of
imprisonment or any of them to which he or she is sentenced shall run concurrently or
consecutively.…” (§ 669, subd. (a).) Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or abstract of judgment, the oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) An
appellate court has jurisdiction to order the correction of an abstract of judgment on its
own motion so that the abstract accurately reflects the sentencing court’s oral judgment.
(Id. at p. 185.)
As there is no document in the record correctly reflecting the total sentence
imposed on defendant, we agree with the People, who concede that the first amended
abstract of judgment must be amended to reflect the entire sentence imposed in this case.
The trial court is therefore instructed to prepare a new abstract of judgment reflecting the
total sentence imposed with both case numbers and both sets of presentence credits
identified.
II. The Trial Court’s Selection of the Upper Term for Count 1 Is Supported By
the Record
At the time defendant was sentenced, section 1170 provided the choice between
the lower, middle, and upper term “shall rest within the sound discretion of the court,”
6.
who determines which term “best serves the interests of justice.” (§ 1170, former
subd. (b).). On January 1, 2022, amendments to section 1170 made by Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) went into effect. Defendant now
believes a portion of his sentence may be invalid due to these amendments.
Of most relevance here is the fact that the changes made to section 1170 through
Senate Bill 567 make the middle term the presumptive term. A trial court may now only
impose an upper term when the facts underlying the aggravating circumstances have been
stipulated to by the defendant, or found true beyond a reasonable doubt by the jury or the
court acting as the factfinder. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731,
§ 1.3.) An exception is also available allowing a trial judge to rely on certified records of
a defendant’s prior convictions without submitting the issue of the prior conviction to a
jury. (§ 1170, subd. (b)(3).)
As Senate Bill 567’s amendments to section 1170, subdivision (b), lessen
punishment, and there is no indication that the Legislature intended it to apply
prospectively only, the new law must be applied retroactively. Therefore, the amendment
to section 1170, subdivision (b), applies to all cases not final on Senate Bill 567’s
effective date. (In re Estrada (1965) 63 Cal.2d 740, 744–745; People v. Flores (2022) 73
Cal.App.5th 1032, 1039.)
When sentencing defendant in this case, the trial court imposed the upper term for
count 1, a violation of section 594, subdivision (a) (felony vandalism). The trial court
selected the upper term after stating the following:
“The Court is considering factors in aggravation, including the
defendant’s prior convictions as an adult or sustained juvenile delinquency
petitions[, which] are numerous. Also, the defendant has served a prior
term in prison or County Jail under [section] 1170[, subdivision] (h). And
then, finally, the defendant’s prior performance on probation, mandatory
supervision, post-release community supervision, or parole was
unsatisfactory. So I do find those aggravating factors.”
7.
While there are no certified records showing defendant’s prior convictions, during
his trial defendant chose to testify on his own behalf and admitted to at least three prior
felony convictions as well as several misdemeanor convictions. The probation report
indicates at least two of these convictions resulted in prison sentences.
The People contend we are not required to send this matter back for resentencing
because the choice of the upper term was based on defendant’s prior criminal history,
which they contend is allowed under section 1170, subdivision (b)(3). The People cite
People v. Towne (2008) 44 Cal.4th 63, and People v. Black (2007) 41 Cal.4th 799, for the
proposition that criminal histories and violations of probation qualify for the exception
provided in section 1170, subdivision (b)(3). While the probation report identifies
numerous violations of probation, we believe defendant’s testimony admitting to prior
convictions satisfies the requirements of section 1170, subdivision (b)(3).
“To the extent these aggravating circumstances were not stipulated to or
found true beyond a reasonable doubt, any error in taking them into
consideration is harmless. (People v. Sandoval (2007) 41 Cal.4th 825, 838
[‘ “denial of the right to a jury trial on aggravating circumstances is
reviewed under the harmless … [beyond a reasonable doubt] standard set
forth in Chapman v. California (1967) 386 U.S. 18” ’].)” (People v.
Flores, supra, 75 Cal.App.5th at p. 500.)
Consistent with the opinion in Flores, we believe any error in this case is harmless.
Defendant admitted during his testimony that he had at least three prior felony
convictions. A remand for resentencing is, therefore, unnecessary.
DISPOSITION
The trial court is instructed to issue an amended abstract of judgment reflecting the
full sentence imposed on defendant at the sentencing hearing held on November 5, 2021.
The amended abstract must list the full sentences imposed at the hearing involving case
Nos. 20CR-01433 and 20CR-01448, along with the presentence credits earned at the time
of sentencing. Once a new amended abstract of judgment is prepared, it shall be
forwarded to the appropriate authorities. In all other respects, the judgment is affirmed.
8.