Opinion
D058930 Super. Ct. No. SCD222632
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. YONIS AFRAH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Judgment affirmed as modified, sentence vacated, remanded with directions.
Yonis Afrah appeals after he pleaded guilty to being a felon in possession of ammunition. His appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738, and People v. Wende (1979) 25 Cal.3d 436, listing as possible but not arguable issues, whether the trial court erred: (1) in denying his request to relieve defense counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and (2) by failing to order or review a probation report prior to sentencing. We granted Afrah permission to file a brief on his own behalf. He has not responded.
We requested supplemental briefing from counsel to address whether the trial court erred in: (1) calculating the number of days Afrah was in actual custody and in determining his appropriate credits; and (2) sentencing him without a probation report. Both counsel responded to our request for supplemental briefs.
FACTS AND PROCEDURAL HISTORY
An amended information charged Afrah with being a felon in possession of a firearm and ammunition (counts 1 & 2), and receiving a firearm while under a restraining order (count 3). On December 15, 2009, Afrah pleaded guilty to count 2 in exchange for probation and the dismissal of the remaining charges. The trial court placed him on three years' probation.
In October 2010, Afrah was arraigned on a separate offense. He pleaded not guilty and denied all allegations. The trial court summarily revoked probation. The trial court later found Afrah in violation of probation and formally revoked probation. It also denied the prosecution's request for a presentencing probation report.
On December 20, 2010, the trial court heard and denied Afrah's Marsden motion to relieve counsel. Thereafter, the trial court denied probation and sentenced Afrah to the mid-term of two years in prison and ordered him to pay various fines and fees. Finally, Afrah received 249 days custody credit consisting of 167 days actual time and 82 days conduct credit under Penal Code section 4019. (Undesignated statutory references are to the Penal Code.) A postconviction probation report calculated Afrah's credits at 168 days actual and 168 days conduct credit under section 4019. We take judicial notice of an ex parte minute order dated March 7, 2011, where the trial court corrected Afrah's credits to those listed in the postconviction probation report. (Evid. Code, § 452, subd. (d).)
DISCUSSION
I. Sentencing Without a Probation Report
A probation report must be prepared prior to sentencing whenever the defendant is eligible for probation. (§ 1203, subd. (b)(1).) When the defendant's eligibility for probation mandates preparation of a probation report, an effective waiver requires a written stipulation or oral agreement on the record. (§ 1203, subd. (b)(4).) Here, the record does not show that Afrah was ineligible for probation or that he waived his right to a probation report. As the Attorney General concedes, the trial court erred in sentencing Afrah without ordering and considering a probation report. Accordingly, the sentence must be vacated and the matter remanded for resentencing.
II. Custody Credits
A. Actual Days in Custody
As we previously indicated, the trial court issued an ex parte minute order stating that Afrah was entitled to 168 days of actual credit. (Evid. Code, § 452, subd. (d).) Afrah asserts, the Attorney General concedes, and we agree, that the actual number of days is 167. Specifically, Afrah suffered two periods of incarceration. The first period spanned from August 31, 2009 to December 15, 2009, for a total of 107 days. The second period spanned from October 22, 2010 to December 20, 2010, for a total of 60 days. B. Conduct Credits
The calculation of conduct credits under section 4019 is more complex because the Legislature amended this statute between Afrah's two periods of incarceration. In October 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, revised the accrual rate for conduct credits under section 4019. The amendment became effective on January 25, 2010, before the trial court sentenced Afrah on December 20, 2010. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) (All references to "former" section 4019 refer to the version that was in effect prior to January 25, 2010. (Stats. 1982, ch. 1234, § 7.) All references to "amended" section 4019 refer to the amendment effective January 25, 2010. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Although section 4019 was again amended by urgency legislation, operative on September 28, 2010, the new version of section 4019 does not affect this case as it applies only to cases involving crimes occurring on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.)
The Attorney General contends that amended section 4019 does not apply to Afrah's first period of incarceration because the amendment is not retroactive. Thus, he asserts that for Afrah's first incarceration (August 31, 2009 to December 15, 2009), conduct credit should be calculated based on former section 4019, the version in effect at the time the custody was served. For the period of Afrah's second incarceration (October 22, 2010 to December 20, 2010), after the effective date of amended section 4019, the Attorney General contends the amended statute applies. Afrah argues that amended section 4019 applies to both periods of incarceration because this was the statute in effect when the trial court sentenced him. We agree with Afrah.
The issue here is whether amended section 4019 applies to all presentence custody, even custody that occurred prior to January 25, 2010, the effective date of the amendment, when the defendant is sentenced after January 25, 2010. To answer the question we rely on the language of amended section 4019 and section 2900.5. Under section 2900.5, "all days of custody of the defendant, including . . . days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . ." (§ 2900.5, subd. (a), italics added.) "It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section." (Id., subd. (d).) Amended section 4019, in effect when Afrah was sentenced, provided in part, "The provisions of this section shall apply in all of the following cases: [¶] (1) When a prisoner is confined in or committed to a county jail, . . . including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, . . . in a criminal action or proceeding." (Amended § 4019, subd. (a)(1), italics added.)
Thus, under section 2900.5, the trial court has a duty to calculate the number of days the defendant was in presentence custody, to determine the total number of days to be credited, and to apply the section 4019 credits at the time of sentencing. (§ 2900.5, subds. (a), (d).) Additionally, under amended section 4019, "all days of custody from the date of arrest to the date on which the serving of the sentence commences" are subject to amended section 4019. (Amended § 4019, subd. (a)(1).) Accordingly, the date a defendant is sentenced is the date the court determines actual days in custody. After the court determines the actual days in custody, it can then determine conduct credits under section 4019. Thus, the only version of section 4019 that is relevant is amended section 4019, the version in effect when Afrah was sentenced. (See also People v. Buckhalter (2001) 26 Cal.4th 20, 30 [" '[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. [Citations.]"]; Cal. Rules of Court, rule 4.310 [Determination of credit is to be performed "[a]t the time of sentencing"].) Under amended section 4019, Afrah is entitled to presentence conduct credit at the rate of one day's credit for each day served. (People v. Pacheco (2011) 194 Cal.App.4th 343, 346.) Accordingly, Afrah is entitled to 167 days of conduct credit.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, has disclosed no other reasonably arguable appellate issues. Afrah has been competently represented by counsel on this appeal.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the superior court with directions to refer the matter to the probation officer for preparation of a report pursuant to subdivision (b)(1) of Penal Code section 1203, and for resentencing after the report has been prepared and the court has considered it. The presentence credits are to be awarded as indicated in this opinion.
MCINTYRE, J. WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.