Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCR027261 Edward P. Moffat II, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
Appellant, Virginia Harris, pled no contest to receiving stolen property in exchange for a stipulated sentence of 16 months. On appeal, Harris contends the court erred in its award of presentence custody credit. We will find merit to this contention and modify the judgment accordingly. In all other respects, we will affirm.
FACTS
On September 30, 2006, Harris attempted to cash a stolen check at the Money Mart in Madera. On July 16, 2007, Harris was arrested on another matter by Fresno police and transferred to Madera County. She was released on her own recognizance on July 19, 2007.
On April 14, 2008, the court sentenced Harris to the stipulated 16-month term. The court also awarded her four days of presentence actual custody credit and no days of presentence conduct credit.
On October 6, 2008, appellate counsel filed a non-appearance motion in the trial court, asking the court to award Harris two days of presentence conduct credit. The motion was served on the Attorney General and the Madera County District Attorney’s Office.
On October 10, 2008, the court denied the motion.
DISCUSSION
Harris Did Not Waive The Issue On Appeal
Harris contends the court erred when it denied her motion to award her two days of presentence custody credit. Respondent contends the issue is not cognizable on appeal because Harris did not file a formal motion in the trial court. Alternatively, respondent contends there is no merit to Harris’s contention. We agree with Harris.
Penal Code section 1237.1 (section 1237.1) provides:
“No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.”
In People v. Fares (1993) 16 Cal.App.4th 954 (Fares), the court held that “[i]f a dispute arises as to the correct calculation of credit days, such should be presented on noticed motion” to the court that imposed sentence. (Id. at p. 958.)
In People v. Clavel (2002) 103 Cal.App.4th 516 (Clavel), the court, relying on Fares, held that a letter motion was inadequate to preserve the issue of presentence custody credit on appeal. In so holding the court stated,
“[B]oth section 1237.1 and Fares itself explicitly require that a formal motion be filed in the trial court. Neither the statute nor the opinion suggest that an informal letter will suffice. (See § 1237.1 [no appeal shall be taken unless defendant ‘first makes a motion for correction of the record in the trial court’]; People v. Fares, supra, 16 Cal.App.4th at p. 958, … That there may also be a workable informal method of requesting correction of erroneous awards of presentence custody credits does not change the fact that once the matter is before us on appeal, the record must show that the defendant first filed a motion in the trial court raising the issue and requesting relief. (See § 1237.1; Fares at p. 958.)
“The difference between a formal motion and an informal letter is significant. Unlike a letter, a motion is necessarily a part of the record and compels judicial response. It is noteworthy that the trial court in this case apparently did not find it necessary to rule on the request set forth in the letter or respond to it in any other way. This informal procedure does not meet the needs of an orderly appellate process; nor does it fully protect the interests of criminal defendants.” (Clavel, supra, 103 Cal.App.4th at pp. 518-519, fn omitted.)
We are not persuaded by Clavel’s reasoning. Clavel has not been cited by subsequent published opinions. Nor does it define a “formal” motion. Instead, it references California Rules of Court, rule 201(j) which addresses what papers may be accepted by the clerk for filing. (Clavel, supra, 103 Cal.App.4th at p. 519, fn. 4.) Papers that do not comply with the lengthy requirements for formatting set forth in California Rules of Court, rule 201(a) through (i) may be rejected or not rejected, at the discretion of the trial court.
Neither Fares or section 1237.1 use the term “formal” motion and Fares used the term “noticed” motion. (Fares, supra, 16 Cal.App.4th at pp. 958-959.) Further, a motion is defined by statute as, “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Code of Civil Proc., § 1003.)
We think that what is important is that all parties have an opportunity to respond. Interpreting section 1237.1 as requiring an in-court hearing for credit motions opens the way for enormous expenditures of public funds for travel for appellate counsel and transportation of unrepresented defendants. Such an interpretation makes no sense and is of dubious value when the court, as occurred here, has already ruled in a letter motion against the defendant. As the Court of Appeal, Second Appellate District, Division Five, recognized in People v. Acosta (1996) 48 Cal.App.4th 411, 426-427 (Acosta), preparation of an appellate record and appointment of counsel involve considerable expense. Acosta held that section 1237.1 permits an appellate court to consider a credit issue joined with another issue, even when no attempt has been made to have the trial court correct an error. (Acosta, supra, 48 Cal.App.4th at p. 420.) As Acosta recognized, inasmuch as the purpose of section 1237.1 is to consolidate litigation, requiring multiple litigation defeats the purpose: “Rather, we make reference to the economic issue because the Legislature intended to reduce public costs and not to create a rule where publicly compensated lawyers are flying up and down the state for hearings on motions when the same issue can be succinctly raised on direct appeal [to the trial court] in a less costly fashion.” (Id. at p. 427.)
Here, appellate counsel filed a letter motion and served it on respondent and the Madera District Attorney. The court considered the motion and ruled against appellant. In addition to the added expense of having appellate counsel make an appearance in the trial court in an attempt to gain appellant two additional days of conduct credit, there apparently is nothing to be gained through a formal noticed motion because it is unlikely that the trial court will change its ruling. Accordingly, we conclude that appellate counsel’s letter motion was sufficient to preserve the credits issue on appeal.
Harris Is Entitled to Two Days of Conduct Credit
Penal Code section 4019 provides:
“(a) 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, industrial farm, or road camp, or any city jail, industrial farm, or road camp, 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, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.
“(2) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence, in a criminal action or proceeding.
“(3) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp for a definite period of time for contempt pursuant to a proceeding, other than a criminal action or proceeding.
“(4) When a prisoner is confined in a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp following arrest and prior to the imposition of sentence for a felony conviction.
“(b) Subject to the provisions of subdivision (d), for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(d) Nothing in this section shall be construed to require the sheriff, chief of police, or superintendent of an industrial farm or road camp to assign labor to a prisoner if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp.
“(e) No deduction may be made under this section unless the person is committed for a period of six days or longer.
“(f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Italics added.)
Harris contends she is entitled to two days of presentence conduct credit because she served four days in presentence actual custody. Respondent contends that as used in the statute “committed” means actually physically confined. Thus, according to respondent, Harris is not entitled to two days of conduct credit because she did not serve six days in actual confinement prior to being sentenced. We agree with Harris.
This issue is currently before the California Supreme Court in People v. Dieck review granted January 3, 2008, S158076.
“In determining the meaning of statutory language, the basic guidelines are well established. As explained in People v. Woodhead (1987) 43 Cal.3d 1002, “Our analysis starts from the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]” (Id. at pp. 1007-1008; Bradshaw v. City of Los Angeles (1990) 221 Cal.App.3d 908, 915-916.) “[I]nterpretations that render statutory terms meaningless as surplusage are to be avoided. [Citations.]” (People v. Hudson (2006) 38 Cal.4th 1002, 1010.)
Here, the meaning of the word “committed” is ambiguous because it could refer to someone who is actually confined in custody or it could refer to someone who is ordered to be confined like a defendant who is sentenced to custody for a specified period of time. However, interpreting the term “committed” to mean actual physical confinement served would render the word “confined” as used in Penal Code section 4019 a surplusage. Accordingly, we conclude that as used in this section, “committed” means sentenced or ordered to serve six or more days in custody. Further, since Harris was “committed” to the Department of Corrections and Rehabilitation for 16 months, the court erred by its failure to award Harris two days of presentence conduct credit for the four days she served in presentence actual custody.
DISPOSITION
The judgment is modified to award Harris two days of presentence conduct credit. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.