Opinion
F082661
07-15-2022
In re LARRY NADEAU, On Habeas Corpus.
Angela Berry, for Petitioner. Rob Bonta, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Maria G. Chan and Lucas L. Hennes, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Nos. DF013740A & CH026547 Michael E. Dellostritto, Judge.
Angela Berry, for Petitioner.
Rob Bonta, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Maria G. Chan and Lucas L. Hennes, Deputy Attorneys General, for Respondent.
LEVY, J.
INTRODUCTION
Petitioner Lawrence Earl Nadeau (also known as Larry Nadeau) is currently in the custody of respondent, the warden of the California Department of Corrections and Rehabilitation (CDCR). Starting in 1998, petitioner began serving an indeterminate prison term following a conviction of attempted murder in Imperial County. While serving that sentence in prison he incurred subsequent convictions, resulting in additional determinate judgments in 2009 in Lassen County and in 2019 in Kern County. In 2020, however, petitioner's attempted murder conviction from Imperial County was vacated and, retroactively, he was deemed to have fully served that judgment as of 2004.
Once the judgment from Imperial County was retroactively deemed served, CDCR assigned December 30, 2017, as the starting point for petitioner's remaining prison term. This date is when petitioner committed his most recent offense from Kern County, which is the principal term on his remaining judgment (the 2009 conviction from Lassen County became the subordinate term in the 2019 judgment).
Petitioner has been in constant custody since 1998, but he is currently not receiving any credit for his time served through December 30, 2017. He argues that, following completion of his judgment from Imperial County, he is entitled to custody credits starting June 11, 2009, which is the day he was sentenced to prison in the case from Lassen County. We agree because our high court's opinion in In re Marquez (2003) 30 Cal.4th 14 (Marquez) establishes that petitioner is entitled to the requested relief. We will grant the petition and direct respondent to give custody credit to petitioner commencing June 11, 2009.
BACKGROUND
I. Petitioner's Penal History.
Petitioner's penal history is crucial to resolving the present writ. We summarize in chronological order his prior criminal judgments. We also explain how CDCR has determined petitioner's current period of incarceration.
A. The judgment in 1998 from Imperial County.
In 1998, petitioner was sentenced to prison for life with the possibility of parole. This indeterminate term was based on a conviction for attempted murder. In the same judgment, petitioner was also convicted of kidnapping, but that sentence was stayed. The Imperial County Superior Court issued an indeterminate abstract of judgment in 1998.
B. The judgment in 2009 from Lassen County.
In 2009, petitioner was convicted of possession of a controlled substance while in prison in Lassen County. On or about June 11, 2009, the Lassen County Superior Court sentenced him to prison for four years. It issued a determinate abstract of judgment. Petitioner was not awarded any presentence custody credits.
C. The judgment in 2019 from Kern County.
In 2019, petitioner was convicted of possession of a dangerous weapon by an inmate while in prison in Kern County. On or about June 24, 2019, the Kern County Superior Court sentenced him to prison for six years, which represented the principal term. The sentencing court designated the 2009 conviction from Lassen County as the subordinate term, and two years were imposed. This aggregate eight-year sentence was imposed consecutively to the indeterminate sentence from the Imperial County case. In 2019, the Kern County Superior Court issued a determinate abstract of judgment that reflected both the 2019 conviction from Kern County (the principal term) and the 2009 conviction from Lassen County (the subordinate term). No presentence custody credits were awarded.
D. The conviction for attempted murder is vacated.
In 2020, the Imperial County Superior Court vacated petitioner's conviction for attempted murder. For the remaining kidnapping conviction, the court sentenced petitioner to prison for the upper term of eight years. Because petitioner had already served that time in prison, he was given credit for time served. The sentencing court ordered petitioner to be immediately released from CDCR custody.
The attempted murder conviction was vacated because petitioner qualified for resentencing under former Penal Code section 1170.95 following legislative changes regarding the requirements for conviction of attempted murder. (See former Pen. Code, § 1170.95.) Effective June 30, 2022, Penal Code section 1170.95 was renumbered Penal Code section 1172.6, with no change in the text (Stats. 2022, ch. 58, § 10).
The parties agree that, when petitioner was resentenced in 2020, the Imperial County Superior Court did not address petitioner's 2019 abstract of judgment from Kern County.
II. Petitioner's Current Status.
Following the 2020 order from the Superior Court of Imperial County, CDCR determined that petitioner could not be released from custody. Instead, he had to complete the sentence memorialized in the 2019 abstract of judgment from Kern County. CDCR designated December 30, 2017, as the starting date for petitioner's current period of incarceration. This was when petitioner committed the crime that was the subject of the principal term from the 2019 judgment issued from Kern County.
CDCR did not start petitioner's current sentence as of March 20, 2019, which represented the date of conviction for his principal term (the 2017 possession of a dangerous weapon by an inmate in Kern County).
On or about January 26, 2022, petitioner completed his six-year sentence for the principal term (i.e., the 2019 conviction from Kern County for possession of a dangerous weapon by an inmate). On or about January 26, 2022, petitioner began serving his two-year sentence for the subordinate term (i.e., the 2009 conviction from Lassen County for possession of drugs where prisoners are kept).
Petitioner currently remains in respondent's custody. According to CDCR's records, petitioner's earliest possible release date (EPRD) is on or about October 28, 2024.
It is unclear from this record why CDCR lists the EPRD as on or about October 28, 2024, which is more than two years from when CDCR calculated that start date for the two-year subordinate term (which commenced on or about January 26, 2022). In 2020, the superior court denied an earlier writ in this matter, and it noted this discrepancy regarding the EPRD. The superior court questioned whether the October 28, 2024, date was a miscalculation by CDCR, and the lower court invited the parties to analyze this issue further.
DISCUSSION
Petitioner asserts he is entitled to custody credit because he has" 'dead time'" from the retroactive completion of his sentence in the Imperial County case until he started to serve his current judgment. In other words, he has unapplied custody time from 2004 until December 30, 2017. He asks us to grant his petition and award him the additional custody credits.
In contrast, respondent asks us to deny the petition. Respondent takes the position that CDCR is simply executing the 2019 abstract of judgment from Kern County. Respondent argues that CDCR is not authorized to give petitioner any presentence custody credits, which falls under the authority of the sentencing court.
We agree with petitioner that he is entitled to the additional custody credits. Because he was sentenced to prison in the Lassen County case on or about June 11, 2009, he is entitled to receive credit for his time served following that judgment because his prior indeterminate term was vacated. In relevant part, Penal Code section 2900.5 states that a defendant shall receive credit for any time spent in jail or prison. (§ 2900.5, subd. (a).) However, custody credit can only be given "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." (Id., subd. (b); see also People v. Buckhalter (2001) 26 Cal.4th 20, 30 ["Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct."].)
All future statutory references are to the Penal Code unless otherwise noted.
In Marquez, supra, 30 Cal.4th 14, our high court analyzed how to apply section 2900.5. In that case, the defendant was arrested in Monterey County on suspicion of burglary, but he posted bail and was released. (Marquez, supra, 30 Cal.4th at p. 17.) About 12 days later, he was arrested in neighboring Santa Cruz County on another burglary charge. While he was in custody in Santa Cruz County, Monterey County placed a hold on him. (Ibid.) Thereafter, the defendant was convicted in Santa Cruz County and he was sentenced to prison. (Id. at p. 18.) The defendant was rebooked into the Monterey County jail. He was convicted in that county and sentenced to prison. (Ibid.)
On appeal, the defendant's conviction from Santa Cruz County was reversed. (Marquez, supra, 30 Cal.4th at p. 18.) The Santa Cruz County Superior Court vacated the defendant's sentence and dismissed the charges. Since that time, 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 Marquez court concluded that the outcome of the matter depended on how it interpreted section 2900.5, subdivision (b). (Marquez, supra, 30 Cal.4th at p. 19.) According to the high court, the defendant was entitled to custody credit because Monterey County had placed a hold on him. Thus, the defendant's custody had been "attributable" to the pending criminal charges in both Santa Cruz and Monterey Counties. (Id. at p. 20.) Once Santa Cruz County dismissed its charges after the defendant's successful appeal, the defendant was entitled to credit for all custody following Monterey County's hold, including the period between the defendant's sentencing in Santa Cruz County and his Monterey County sentencing. This time was" 'attributable'" to the proceedings in Monterey County because it related to the same conduct for which the defendant was convicted. (Ibid., quoting § 2900.5, subd. (b).)
The Marquez court noted that, to deny the defendant credit for his time spent in custody between the sentencing in Santa Cruz County and the sentencing in Monterey County would render this period" 'dead time,' that is, time spent in custody for which he received no benefit." (Marquez, supra, 30 Cal.4th at p. 20.) The high court, however, acknowledged that" 'dead time'" is sometimes "unavoidable." (Ibid.) For example, if Monterey County had never placed its hold, the defendant would have not received any presentence custody credits from his time in Santa Cruz County. (Id. at pp. 20-21.) However, because Monterey County had placed a hold on him, the defendant was entitled to custody credit from the placement of that hold until sentence was imposed against him in Monterey County. (Id. at p. 21.)
In the present matter, petitioner argues that the reasoning employed in Marquez should resolve the present dispute favorably for him. We agree.
When petitioner was sentenced in 2009 in Lassen County, he had two operative abstracts of judgment against him: (1) the 1998 indeterminate abstract of judgment from Imperial County and (2) the 2009 determinate abstract of judgment from Lassen County. At that point, petitioner was not entitled to receive any presentence custody credits in the Lassen County case. His prison time was not attributable to the 2009 judgment. Instead, all of his prior custody was directly attributable to his 1998 indeterminate judgment. (See § 2900.5, subd. (b).)
When petitioner was sentenced in 2019 in Kern County, he still had two operative abstracts of judgment against him: (1) the 1998 indeterminate abstract of judgment from Imperial County and (2) the 2019 determinate abstract of judgment from Kern County (in which the prior judgment from Lassen County became the subordinate term). At that point, petitioner was not entitled to receive any presentence custody credits against his 2019 judgment because his time in custody was still attributable to his 1998 indeterminate judgment. (See § 2900.5, subd. (b).) In other words, while he was serving his indeterminate prison term, petitioner could not receive custody credits against his other subsequent judgments because those newer proceedings had no effect upon his liberty. (See In re Rojas (1979) 23 Cal.3d 152, 156.)
Petitioner's situation, however, dramatically changed in 2020 when the Imperial County Superior Court vacated his conviction for attempted murder. He was retroactively deemed to have completed his Imperial County judgment as of 2004.
Petitioner's situation is very analogous to Marquez, and the high court's reasoning is instructive. Once petitioner's judgment from Imperial County ended due to a change in law, his prison custody became attributable to his 2009 judgment from Lassen County. That judgment started on June 11, 2009. Thus, petitioner is entitled to credit for his time in prison starting June 11, 2009. (See § 2900.5, subds. (a) & (b).) Petitioner, however, is not entitled to custody credits prior to the start of his 2009 judgment. He has unavoidable "dead time" from 2004 until June 10, 2009.
We note it is irrelevant that the 2009 judgment subsequently became the subordinate term in 2019. Based on the plain language of section 2900.5, petitioner qualifies for custody credits starting June 11, 2009, when his prison custody became attributable to the judgment from Lassen County. (See Marquez, supra, 30 Cal.4th at p. 20 [the plain meaning of § 2900.5, subd. (b), controls].)
Respondent argues that Marquez is distinguishable from the present matter because it dealt with pretrial detention. In any event, respondent contends that Marquez supports CDCR's position. Respondent notes that, just as in Marquez, it was the superior court that failed to award petitioner the proper presentencing credit. Respondent emphasizes that petitioner is lawfully incarcerated pursuant to the 2019 abstract of judgment from Kern County, which reflects zero days of credit for time served.Respondent maintains that CDCR cannot amend this number and award credit for petitioner's custody prior to December 30, 2017, when petitioner committed the crime that comprises the principal term.
Respondent notes that, when petitioner was resentenced in Imperial County in 2020, the Imperial County Superior Court should have, but did not, aggregate all of petitioner's sentences. The 2020 determinate abstract of judgment from Imperial County does not list any presentence custody credits.
Respondent's arguments do not alter our conclusion that petitioner is entitled to the additional custody credits. As an initial matter, respondent is correct that it is a sentencing court which must award presentence custody credits. (Cal. Code Regs., tit. 15, § 3043.1; People v. Buckhalter, supra, 26 Cal.4th at p. 30 [a sentencing court has responsibility to calculate presentence custody credits and reflect those in the abstract of judgment].)
In this matter, neither the 2009 nor the 2019 determinate abstracts of judgment awarded petitioner any presentence custody credits. This is not surprising, however, because when those judgments were entered against petitioner he was already serving an indeterminate term. As such, he was not entitled to presentence custody credits since he was serving a prior judgment. (See In re Rojas, supra, 23 Cal.3d at p. 156 [a defendant may not receive credit on a second conviction if already serving a sentence].) However, the nature of petitioner's custody changed dramatically when it was retroactively determined that he had completed his judgment from Imperial County as of 2004.
We note that respondent never contends petitioner may not lawfully be awarded the custody credits that he seeks. Instead, respondent takes the position that CDCR is not authorized to provide those credits without a court order. Although Marquez is factually distinguishable, its reasoning and analysis of section 2900.5 must be followed. Similar to Marquez, once petitioner was deemed to have completed his judgment from Imperial County as of 2004, his continuous prison custody became attributable to the judgment announced on June 11, 2009. Marquez dictates that petitioner receive the additional custody credits.
Because we resolve this writ based on Marquez and section 2900.5, we need not address petitioner's alternative assertions regarding the legislative intent of former section 1170.95 (which was the reason for his 2020 resentencing in the Imperial County case). Likewise, we need not address his arguments regarding section 1170.1, subdivision (c), which generally states that the term of imprisonment for conviction from multiple felonies shall commence from the time the person would otherwise have been released from prison.
DISPOSITION
The petition for writ of habeas corpus is granted. Respondent is directed to give custody credit to petitioner commencing June 11, 2009.
WE CONCUR: HILL, P. J., FRANSON, J.