People v. Oliver CA2/1

Filed 7/18/23 P. v. Oliver CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B322892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA070163)
v.
ANTHONY WAYNE OLIVER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Lise M. Breakey, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
___________________
MEMORANDUM OPINION1
I
Defendant and appellant Anthony Wayne Oliver, also
known as Lawrence Edward Haines, seeks review of the trial
court’s order denying his motion for additional presentence
custody credit relating to a 1983 conviction for felon-in-possession
of a firearm, a 1984 conviction for two counts of robbery, and a
1984 conviction for murder in the first degree. The record on
appeal is limited. It includes Oliver’s May 17, 2022, motion for
an award of additional presentence credit, which attached as
exhibits three abstracts of judgment and a document entitled
“Report–Indeterminate Sentence, Other Sentence Choice.” Other
than the notice of appeal, the only other document included is the
trial court’s minute order denying Oliver’s motion. Because
Oliver fails to affirmatively demonstrate any error, we affirm.
A. 1983 Robbery Conviction
Oliver states he was arrested for robbery on February 19,
1983. On July 28, 1983, in case No. A625206, a jury convicted
Oliver of a robbery (Pen. Code,2 § 211) committed in 1983. On
August 25, 1983, the trial court sentenced Oliver to five years in
state prison. The trial court credited Oliver with a total of 279
days in custody, comprised of 186 days of actual local time and 93
1 We resolve this case by memorandum opinion because it
“is determined by a controlling statute which is not challenged for
unconstitutionality and does not present any substantial question
of interpretation or application.” (Cal. Stds. Jud. Amin., § 8.1(1).)
2Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
days of conduct credits. The abstract of judgment indicates the
trial court remanded Oliver to the sheriff’s custody “forthwith” to
be delivered to the state prison in Chino, California. Oliver does
not contend the sentencing court erred in its calculation of credits
for this matter.
B. 1983 Felon-in-possession Conviction
At some unknown date or dates after Oliver’s February 19,
1983 arrest, Oliver was charged with additional crimes. On
October 27, 1983, in case No. A455650, a jury found Oliver guilty
of possession of a concealable firearm by one previously convicted
of a felony (fmr. § 12021). The abstract of judgment indicates
Oliver committed the crime in 1982. On November 23, 1983, the
trial court sentenced Oliver to three years in state prison, to be
served concurrently “with any prior uncompleted sentence(s).”
The trial court credited Oliver with a total of 405 days in custody,
comprised of 270 days of actual local time and 135 days of
conduct credits. Oliver contends he is owed an additional 7 days
of actual local time and 1 day of conduct credit, for a total of 8
days custody credits.
C. 1984 Robbery Convictions
On March 1, 1984, in case No. A388286, a jury convicted
Oliver of two counts of robbery committed in 1983. On April 23,
1984, the trial court sentenced Oliver to a total of 12 years, which
included two years for personal use of a firearm under section
12022.5 and five years for prior felony convictions under section
667.6, subdivision (a). Oliver contends this sentence was to run
consecutively to his prior terms. The trial court credited Oliver
with 270 days of custody credits, comprised of 180 days of actual
local time and 90 days of conduct credits. Oliver argues he is
3
owed an additional 373 days of custody credit, including 249 days
of actual local time and 124 days of conduct credits.
D. 1984 Murder Conviction
On July 31, 1984, in case No. A625895, a jury convicted
Oliver of first degree murder (§ 187), committed in 1982.
According to a “Report–Indeterminate Sentence, Other Sentence
Choice” form, on October 25, 1984, the trial court sentenced
Oliver to state prison for an indeterminate prison term of “life, or
a term such as 15 or 25 years to life, with the possibility of
parole.” The form did not include any spaces within which the
trial court could indicate custody credits, and Oliver contends he
was not awarded any. He argues he is owed 612 days of actual
local time custody credit and 1 leap year day credit for a total of
613 days of custody credits.
E. Procedural Background Relating to Defendant’s
Motion and Appeal
On May 17, 2022, Oliver filed a motion for additional
presentencing credits and for resentencing pursuant to sections
654 and 667. On June 29, 2022, the trial court issued a minute
order denying Oliver’s motion. Oliver filed a timely notice of
appeal.
We appointed counsel to represent Oliver on appeal.
Oliver’s attorney filed a brief raising no issues and requesting
that we exercise our discretion to independently review the
record for error pursuant to People v. Delgadillo (2022) 14 Cal.5th
216. In Delgadillo, the Supreme Court established procedures for
cases in which counsel determines that an appeal from an order
denying postconviction relief lacks merit. In such cases,
“(1) counsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing
4
on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the
defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may
dismiss the matter.” (Id. at pp. 231-232.) If the defendant does
not file a supplemental brief, we “may dismiss the appeal as
abandoned.” (Id. at p. 232.) In that instance, we do “not need to
write an opinion but should notify the defendant when [we]
dismiss[ ] the matter.” (Ibid.) Because a defendant who has been
denied postconviction relief has no constitutional right to an
appeal, we are not required to conduct an independent review of
the record before dismissing the appeal, but we may conduct such
a review at our discretion. (Id. at pp. 227-228, 232.)
If the defendant does file a supplemental brief or letter, we
are “required to evaluate the specific arguments presented in
that brief and to issue a written opinion. The filing of a
supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues.” (People v.
Delgadillo, supra, 14 Cal.5th at p. 232.)
We followed the procedure outlined above and, on April 23,
2023, sent Oliver notice to advise him of the no-merits brief and
informing him that he had 30 days to file a supplemental brief.
We received Oliver’s supplemental brief with a proof of service
indicating it was placed in the mail on May 15, 2023.3 We
3 On May 24, 2023, after not receiving a supplemental brief
from Oliver, this court dismissed his appeal. Oliver requested
this court rescind its dismissal on the basis that he placed his
supplemental brief in the prison mail on May 15, 2023, prior to
the expiration of the 30-day period. On May 30, 2023, good
5
evaluate the arguments presented in Oliver’s supplemental brief.
As the record before us relates only to the issues presented in the
supplemental brief, we decline to review it to identify any
unraised issues.
II
Under section 2900.5, a sentencing court is to provide
sentencing credits to a defendant for time spent in custody prior
to the commencement of the defendant’s sentence. (Id., subd. (a);
see also fmr. § 2900.5, subd. (a) (1980).) Such credits include
actual days in custody plus conduct credits under section 4019.4
(§§ 2900.5, subd. (a), 4019, subds. (a)(1), (b).)
Under section 2900.5, subdivision (b), however, “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. Credit shall be given only once for a single
period of custody attributable to multiple offenses for which a
consecutive sentence is imposed.” (§ 2900.5, subd. (b); see fmr.
§ 2900.5, subd. (b) (1980).)
causing appearing, this court granted Oliver’s request and
vacated its dismissal order.
4 For defendants sentenced prior to January 25, 2010,
section 4019 conduct credits were calculated by dividing the
defendant’s actual time in custody by 4 (discarding any fraction
or remainder) and then multiplying the resulting number by 2.
(See In re Marquez (2003) 30 Cal.4th 14, 26; Couzens, et al.,
Sentencing California Crimes (2022) Calculation of credits,
§ 15:6.) Beginning in 1996, section 2933.2 prohibited persons
convicted of murder from accruing conduct credits under section
4019. (See § 2933.2, subd. (c).)
6
Thus, “a defendant is not to be given credit for time spent
in custody if during the same period he is already serving a term
of incarceration” for a prior, unrelated offense. (In re Rojas
(1979) 23 Cal.3d 152, 154, 155-156.) “Section 2900.5 does not
authorize credit where the pending proceeding has no effect
whatever upon a defendant’s liberty.” (Id. at p. 156; see People v.
Bruner (1995) 9 Cal.4th 1178, 1180 [describing In re Rojas as
requiring “ ‘strict causation’ ”]; In re Hodges (1979) 89 Cal.App.3d
221, 226, fn. omitted [a defendant “would be entitled to
presentence custody credit if but only if the conduct for which he
is ultimately convicted was the cause of that confinement”].)
After In re Rojas, our Supreme Court has repeatedly reaffirmed a
defendant must demonstrate causation: “a defendant cannot
obtain credit for confinement prior to his sentence if he cannot
prove the conduct which led to the sentence was a dispositive, or
‘but for,’ cause of the presentence custody.” (People v. Bruner,
supra, at p. 1180; see In re Joyner (1989) 48 Cal.3d 487, 489 [“[A]
period of time previously credited against a sentence for
unrelated offenses cannot be deemed ‘attributable to proceedings’
resulting in a later-imposed sentence unless it is demonstrated
that the claimant would have been at liberty during the period
were it not for a restraint relating to the proceedings resulting in
the later sentence. In other words, duplicative credits against
separately imposed concurrent sentences for unrelated offenses
will be granted only on a showing of strict causation”].)
“[W]e presume the trial court’s judgment is correct, and we
look to the record to determine whether a defendant has met his
or her burden of affirmatively demonstrating error.” (People v.
Davis (2023) 87 Cal.App.5th 771, 779.) “The burden of
establishing the strict causation, ‘but for’ test of [In re] Joyner is
7
with the appellant who claims credit for time in custody on other
charges.” (People v. Huff (1990) 223 Cal.App.3d 1100, 1105.)
Relying on his initial arrest date of February 19, 1983, and
his sentencing date in each case, Oliver contends he is entitled to
additional presentence credits in cases numbered A455650,
A388286, and A625895.5 However, as the holdings of In re Rojas,
In re Joyner, and People v. Bruner demonstrate, a defendant’s
entitlement to credits in multiple case situations is not as simple
as determining the number of days between arrest and
sentencing. (See People v. Huff, supra, 223 Cal.App.3d at p. 1104
[“The issue of what custody is ‘attributable to proceedings related
to the same conduct’ as that for which a defendant is to be
sentenced has provoked a considerable quantity of appellate
literature, much of it conflicting”]; People v. Adrian (1987) 191
Cal.App.3d 868, 874-875 [“Probably the only sure consensus
among the appellate courts is a recognition that section 2900.5,
subdivision (b), is ‘difficult to interpret and apply’ ”].)
By the time the trial court sentenced Oliver in any of the
three cases for which he claims he is due credits, he was at least
12 weeks and at most 61 weeks into serving his five-year
sentence in state prison for his 1983 conviction for robbery in
case No. A625206. Thus, ordinarily, Oliver would not be entitled
to any credits for subsequent, unrelated convictions and
sentences. (See In re Rojas, supra, 23 Cal.3d at pp. 155-156.)
Here, Oliver has not presented any argument or evidence to
5 Oliver also argues that if we reverse the trial court’s
order, he is entitled to resentencing and the benefit of recently
passed laws, including the California Racial Justice Act of 2020
(Stats. 2020, ch. 317, § 1). Because we affirm, we do not address
these arguments.
8
warrant departure from this principle with respect to his
conviction and sentence for murder. For example, he does not
demonstrate that any portion of his confinement between his
arrest on February 19, 1983, and the commencement of his first
sentence on August 25, 1983, was attributable to the murder
charge or that but for the murder charge, he would have been
released from custody prior to his sentencing thereupon. Thus,
we cannot conclude that the trial court erred in not awarding
Oliver any credits for his murder conviction.
Turning to the second (A455650, 1983 felon-in-possession
conviction) and third (A388286, 1984 robbery convictions) cases,
the only evidence in the record that suggests that Oliver was
entitled to any presentence credits for those matters—
notwithstanding that he was already serving a sentence for his
first conviction (see In re Rojas, supra, 23 Cal.3d at pp. 154, 155-
156)—is that the trial court awarded such credits. Without any
evidence in the record demonstrating error, we must presume the
trial court was correct in doing so, and in not making any further
award, given the separate charges and convictions.
9
DISPOSITION
The trial court’s order denying Oliver’s motion for
additional presentencing credits is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P.J.
10