Opinion
F084565 F084611
12-01-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT BRIAN MILLER, Defendant and Appellant.
Elizabeth Campbell, 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, Michael A. Canzoneri and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Kern County, Nos. BF174458A & BF174568A David R. Zulfa, Judge.
Elizabeth Campbell, 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, Michael A. Canzoneri and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
Robert Brian Miller (defendant) was facing criminal charges in Kern County when he jumped bail and left the state. He was later arrested in Oklahoma and imprisoned for offenses committed in that jurisdiction. Defendant remained incarcerated in Oklahoma for over three years before authorities transported him back to Kern County for further prosecution.
While imprisoned in Oklahoma, defendant made procedurally invalid attempts to invoke a speedy trial provision of the Interstate Agreement on Detainers (IAD) (Pen. Code, § 1389). (All undesignated statutory references are to the Penal Code.) "The IAD is an agreement among 48 states, the District of Columbia, Puerto Rico, the Virgin Islands, and the federal government that seeks to dispose of untried charges from states other than the one in which a prisoner is currently incarcerated." (People v. Oiknine (1999) 79 Cal.App.4th 21, 23-24.) Under specified circumstances, an out-of-state prisoner may obtain the dismissal of pending charges if the prosecuting agency does not bring the case to trial within a certain amount of time. (§ 1389, art. III, subd. (a).)
Upon his return to Kern County, defendant accepted a plea offer. The record indicates defendant and his legal counsel assumed he would receive credit against his sentence for most of his time in the Oklahoma prison system. However, during the plea colloquy the trial court warned that it could not guarantee the availability of such credits. The court explicitly cautioned that the plea deal was "not contingent upon any credit calculation [based on the time defendant spent incarcerated] in Oklahoma." Defendant acknowledged the risk and went forward with the plea.
Prior to sentencing, the defense was informed that relatively little credit would be given for the Oklahoma custody time. Defendant responded by filing a statement in mitigation, wherein it was argued he should receive "credit for all of his time in custody" or have the charges dismissed "for want of prosecution." Defense counsel briefly repeated those contentions at sentencing, and the trial court treated the argument as a motion to dismiss. The "motion" was denied, and the hearing continued without further objections.
Following the pronouncement of judgment, defendant made a remark about wanting to withdraw his pleas. The trial court treated the comment as an untimely motion and denied it. On appeal, defendant claims he is entitled to one of three forms of relief: dismissal of the charges, additional presentence credits, or the withdrawal of his pleas. We reject his claims.
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2018, the Kern County District Attorney (district attorney) filed a complaint in case No. BF174458A (the drug/gun case) charging defendant with seven felonies based on his possession of methamphetamine and an AR-15 firearm. He was arraigned that day, and a deputy public defender was appointed to represent him. Defendant pleaded not guilty to all counts.
Defense counsel subsequently declared a conflict. On November 21, 2018, defendant was appointed new counsel from the Kern County Indigent Defense Program. That same day, the district attorney filed a complaint in case No. BF174568A (the burglary case) charging defendant with one count of first degree burglary.
Despite being filed later in time, the burglary case was based on events preceding the drug/gun case by several months. Defendant was arrested for burglary on June 30, 2018, and released from custody the next day. He was arrested for the drug/gun charges on November 9, 2018.
On or about November 23, 2018, defendant posted bail in the drug/gun case and was released from custody. On November 30, 2018, defendant failed to appear for a prepreliminary hearing in that case. Bail was declared forfeited and a bench warrant was issued for defendant's arrest.
On December 18, 2018, defendant's bail agent filed a motion to vacate the bail forfeiture. Exhibits to the motion showed defendant was arrested in Oklahoma on December 5, 2018, and had been charged with several new drug and gun offenses. The bail motion was filed with the Kern Superior Court and served upon the district attorney, but it was not served upon defense counsel. The motion was granted on January 8, 2019.
Approximately eight months later, the Kern Superior Court received mail from defendant postmarked August 27, 2019. His letter inquired about the status of an "Application for Writ of Habeas Corpus Ad Prosequendum" (boldface and some capitalization omitted). Defendant claimed to have personally drafted the application and alleged it was mailed to the court from McAlester, Oklahoma, on June 26, 2019. On August 30, 2019, a deputy clerk of the Kern Superior Court mailed the documents back to defendant. A form cover letter stated, in relevant part, "We cannot determine the purpose of your letter, therefore, it is being returned to you."
On October 7, 2019, the Court Executive Officer of the Kern Superior Court sent a letter to defendant confirming receipt of his "paperwork postmarked 9/26/2019." Defendant had apparently sent a duplicate copy of his letter from the previous month, plus a copy of the one-page "Application for Writ of Habeas Corpus Ad Prosequendum" referenced in both letters. The Court Executive Officer wrote, "Our court is unable to process the document you have submitted because the request you are making is not a Habeas Corpus matter. Also, the forms you have submitted apply to Federal Court. ... You may want to seek legal advice for further assistance."
A writ of habeas corpus ad prosequendum is typically used "to secure the presence, for purposes of trial, of defendants in federal criminal cases, including defendants then in state custody." (United States v. Mauro (1978) 436 U.S. 340, 358.) Defendant's pro se "application" cited Smith v. Hooey (1969) 393 U.S. 374 in support of his request "to have a Speedy Trial afforded by law." In Smith, a six-year delay in bringing a Kansas prisoner to trial in Texas despite the prisoner's "'various letters, and more formal so-called "motions"'" regarding the delay, was held to violate the prisoner's federal constitutional right to a speedy trial. (Id. at p. 375.) As relevant to defendant's correspondence, the Smith prisoner had unsuccessfully "filed a petition for a writ of habeas corpus ad prosequendum in the Texas trial court, praying that he be brought before the court for trial, or that the charge against him be dismissed." (Id. at p. 376.)
On or about April 17, 2020, the Kern Superior Court received two handwritten documents by mail. It is unclear whether the documents arrived separately or in the same envelope. In the first document, defendant requested the name and address of his defense attorneys in multiple cases, including the drug/gun case and burglary case. The second document was a one-page motion entitled, "Motion To Grant U.S.C.A. Const. Amend 6; West's Ann. Cal Art 1 § 15 CLI and Smith vs Hooey (1969)." (Some capitalization omitted.)
The body of the motion read as follows: "Comes, now Robert B Miller, and states that he is the defendant named above. He has pending charges in the above court for crimes against the State of California. [¶] The defendant is being held at Cimarron Correctional Facility, Cushing, OK, in the custody of the Warden. His current discharge date is 2309 from this date [April 10, 2020] of days to serve. And a doubtful E.P.R.D. of March of 2021. Max discharge date is 24th day of October 2027. [¶] [Illegible word] consideration. The defendant respectfully requests this court to direct the Sheriff of Kern County to bring the defendant before this court to stand trial." (Some capitalization omitted.)
On May 11, 2020, a deputy clerk of the Kern Superior Court sent a form cover letter to defendant's appointed counsel in the drug/gun case, enclosing defendant's handwritten request for the attorney's contact information. It is unclear whether a copy of defendant's handwritten "Motion To Grant . . ." was also included. Also on that day, the same deputy clerk sent a form cover letter to the district attorney's office enclosing a copy of the "Motion To Grant . . .."
On or about July 6, 2020, the district attorney's office sent a formal request for temporary custody of defendant to the warden of the Cimarron Correctional Facility in Cushing, Oklahoma. We will refer to this request as the "detainer" even though it was not labeled as such. (See further discussion, post.) The content, which was certified by the Kern Superior Court, advised the warden of five pending criminal cases against defendant, including the drug/gun case and the burglary case.
On October 15, 2021, a deputy clerk of the Kern Superior Court rejected several pro se submissions by defendant for procedural defects. Two documents were labeled as motions to dismiss "for violation of time constraints" (capitalization omitted). The other documents requested copies of the arrest reports in the drug/gun and burglary cases. One reason for the rejection was the absence of proofs of service, and it is unclear whether defendant's attorney had any knowledge of the attempted filings.
The one-page motions were identical except for the case numbers. One motion referenced the drug/gun case and the other the burglary case. Each motion consisted of six sentences and no supporting evidence. Defendant generally alleged entitlement to dismissal under article III of the IAD.
The record does not confirm when defendant arrived back in California from Oklahoma, but the probation report indicates it was March 24, 2022. Four days later, on March 28, 2022, defendant was arraigned on the complaint in the burglary case and pleaded not guilty. The attorney representing him in the drug/gun case was appointed to also represent him in the burglary case.
On April 8, 2022, defendant appeared in court for a pre-preliminary hearing on the burglary case. During the proceeding, he accepted a plea offer to resolve, inter alia, both the burglary case and the drug/gun case. In exchange for the dismissal of multiple charges and a stipulated prison sentence totaling six years eight months, defendant pleaded no contest to transporting methamphetamine (Health &Saf. Code, § 11379, subd. (a)), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)), and an amended charge of second degree burglary (§§ 459, 460, subd. (b)). Defendant also admitted to having a prior strike conviction for purposes of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.)
On May 6, 2022, the superior court granted the first of three defense requests to continue the sentencing hearing. The second and third continuances were requested and granted on May 17 and June 1, respectively. The delays stemmed from defendant's disagreement with the probation department's calculation of his presentence credits. The superior court repeatedly urged the defense to provide "whatever information" it was relying upon to the probation department and/or the court in order to resolve the dispute.
On June 8, 2022, defense counsel filed a two-page statement in mitigation on defendant's behalf. The statement offered no legal basis for awarding defendant credits for time served in Oklahoma, but it alleged defendant's plea "was in anticipation of getting full credit for [all] time he served in custody." The defense made an "alternative" request to have all charges dismissed "pursuant to Penal Code [section] 1381 as explained in [Crockett v. Superior Court (1975) 14 Cal.3d 433]." (Original italics omitted.) As we will discuss, those cited authorities had no applicability to defendant's situation. Further background on the credits dispute is provided elsewhere in the opinion.
Sentencing took place on June 9, 2022. The hearing began with a brief discussion of the credits dispute and continued with the following exchange:
“[DEFENSE COUNSEL]: … I think if he's not going to get the full credits, there is also an argument that I mentioned in our statement [in mitigation] that because of the length of time between the time he asked to be transported to Kern County and the time they brought him here, that should be dismissed for want of prosecution.
“THE COURT: Well, I'm going to deny your motion to dismiss for want of prosecution. I am going to order all the credits to which I believe he's entitled based on Probation's calculations. [¶] With that in mind, is there any legal cause, [defense counsel]?
“[DEFENSE COUNSEL]: No, Judge.
“THE COURT: Do you waive a formal reading?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Comments or submitted?
“[DEFENSE COUNSEL]: Submitted.”
Pursuant to the plea agreement, the lower term of two years was imposed for defendant's transportation of methamphetamine. This base term was doubled to four years because of the prior strike conviction. A consecutive term of 16 months was imposed for being a felon in possession of a firearm (one-third of the middle term, doubled for the prior strike), plus another consecutive term of 16 months for second degree burglary (same).
On June 30, 2022, the superior court granted defendant's requests for certificates of probable cause in the drug/gun case and burglary case. Defendant had listed "Improper denial of Motion to withdraw plea" and "Improper calculation of custody credits" as the grounds for his requests. Defendant's notices of appeal were filed the same day. Defendant subsequently filed a motion to consolidate the appeals, which was granted.
DISCUSSION
I. IAD Claims
A. Legal Overview
The IAD "defines the responsibilities of (1) the 'sending state' in which a person is presently serving a sentence of imprisonment and (2) the 'receiving state,' in which that person still has pending charges that are subject to a 'detainer.'" (People v. Nguyen (2022) 82 Cal.App.5th 888, 895.) "'Detainer' is a term of art" encompassing various types of "'formal notification, lodged with the authority under which a prisoner is confined, advising that the prisoner is wanted for prosecution in another jurisdiction.'" (Ibid.; accord, United States v. Mauro, supra, 436 U.S. at p. 359.) "Rather than requiring the immediate presence of the prisoner, a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison." (Mauro, at p. 358.) Further action must be taken by either the prisoner or the agency that lodged the detainer before the relevant provisions of the IAD become applicable.
Article III of the IAD "establishes a procedure by which a prisoner against whom a detainer has been lodged may demand trial within 180 days of a written request for final disposition properly delivered to the prosecutor and appropriate court of the prosecutor's jurisdiction." (People v. Brooks (1987) 189 Cal.App.3d 866, 872, italics added, citing § 1389, art. III, subd. (a).) To enable the prisoner to make this demand, "[t]he warden ... or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based." (§ 1389, art. III, subd. (c).) A prisoner's request for final disposition of the pending charges must be made through the warden or other official having custody over the prisoner at that time; a prisoner's direct request to the prosecuting agency or court in which the charges are pending is insufficient. (Id., subd. (b); People v. Lavin (2001) 88 Cal.App.4th 609, 617; People v. Cella (1981) 114 Cal.App.3d 905, 917.)
Upon receipt of a prisoner's article III request, "the warden, commissioner of corrections or other official having custody of him, ... shall promptly forward it together with [a] certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested." (§ 1389, art. III, subd. (b).) The prison official's certificate must provide the following information: "the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner." (Id., subd. (a).) Without the certification, a prosecuting agency has no duty to act upon the prisoner's request "and no article III clock [is] activated." (People v. Rhoden (1989) 216 Cal.App.3d 1242, 1252.)
Actual delivery of the registered or certified mailing to the prosecutor and appropriate court, with all the required contents, is what triggers article III's 180-day deadline to bring the prisoner to trial on the pending charges. (§ 1389, art. III, subd. (a); Fex v. Michigan (1993) 507 U.S. 43, 51-52; People v. Nguyen, supra, 82 Cal.App.5th at p. 896.) "The failure of the state receiving the request to act in compliance with the IAD and the 180-day limit results in dismissal of the pending criminal charges with prejudice." (People v. Lavin, supra, 88 Cal.App.4th at pp. 612-613, citing § 1389, art. V, subd. (c).) But again, "[i]n order to take advantage of the sanction of dismissal, the prisoner must comply with the procedural requirements of the IAD." (Lavin, at p. 616.)
Article IV of the IAD provides an alternative mechanism "by which the prosecutor who has filed a detainer against a prisoner in another jurisdiction can secure his presence for disposition of the outstanding charges. The prosecutor need only present to the officials of the jurisdiction incarcerating the prisoner 'a written request for temporary custody or availability ....'" (People v. Zetsche (1987) 188 Cal.App.3d 917, 923, quoting § 1389, art. IV, subd. (a).) Under this procedure, the deadline to bring the prisoner to trial on the outstanding charges is 120 days. (§ 1389, art. IV, subd. (c).) However, the clock does not begin to run on the 120-day deadline until "the arrival of the prisoner in the receiving state." (Ibid.) If the deadline is triggered and expires, "the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice." (§ 1389, art. V, subd. (c).)
B. Analysis
1. Defendant's Predetainer Submissions
Defendant argues his charges should have been dismissed pursuant to articles III and V of the IAD based on his pro se submissions to the Kern Superior Court between August 2019 and April 2020. However, there is no dispute that the district attorney lodged a detainer with Oklahoma prison officials in July 2020. The 100-page detainer also satisfied the requirements of article IV, subdivision (a) of the IAD. The appellate record contains no evidence of a detainer being lodged with Oklahoma prison officials prior to July 2020.
The December 2018 motion to vacate bail forfeiture filed by defendant's bail agent included an unauthenticated exhibit that was purported to be an e-mail to the bail agent from someone at the district attorney's office. The message, dated December 7, 2018, said, "Yes we will extradite. I will have a hold placed on him today. Thank you." However, extradition is a formal process that is separate and distinct from the IAD. (See People v. Rhoden, supra, 216 Cal.App.3d at pp. 1251-1252 [concluding a letter "explicitly stating the district attorney was proceeding by way of an extradition" did not constitute a detainer; "an extradition procedure has none of the features which the IAD was designed to remedy"].) There is no evidence the district attorney ever pursued extradition in defendant's cases, nor any evidence that a "hold" was in fact placed on defendant before the lodging of the detainer in July 2020. (See In re Joyner (1989) 48 Cal.3d 487, 489, fn. 2 ["A hold refers generally to any document or agreement or understanding, formal or informal, used to prevent the release of a prisoner. Although it has become common to speak of a warrant hold as providing a basis for custody, it would seem that, strictly speaking, custody must be based ultimately on the arrest warrant itself or on other recognized legal process"].)
The United States Supreme Court has said "the provisions of the [IAD] are triggered only when a 'detainer' is filed with the custodial (sending) [s]tate by another [s]tate (receiving) having untried charges pending against the prisoner." (United States v. Mauro, supra, 436 U.S. at p. 343.) In People v. Castoe (1978) 86 Cal.App.3d 484, this district likewise held that "a detainer must be filed before a prisoner can utilize [section 1389] to bring about his trial or a dismissal of the untried charges." (Id. at p. 491.) All other California case law is in accord. (E.g., People v. Rhoden, supra, 216 Cal.App.3d at p. 1251; People v. Brooks, supra, 189 Cal.App.3d at p. 874 ["we hold that a formal detainer must be filed before an inmate ... may invoke the provisions of the IAD"].) Therefore, defendant's predetainer submissions did not trigger the 180-day deadline of the IAD.
Even if there was evidence of a detainer being lodged prior to defendant's correspondence with the Kern Superior Court, his submissions were procedurally defective. As discussed, the IAD "does not permit a prisoner's self-help effort to start the running of the 180-day period." (People v. Castoe, supra, 86 Cal.App.3d at p. 490.) An article III request for final disposition of pending charges must be made "through the warden [or other responsible official] in order to invoke the protection of the IAD." (People v. Garner (1990) 224 Cal.App.3d 1363, 1370.) The prisoner must first "give or send the notice and request to the proper official in the prison where he is incarcerated. The official then is to promptly forward that notice and request along with the [required] certificate to the district attorney and the court by registered or certified mail, return receipt requested." (Castoe, at p. 490 [summarizing the requirements of § 1389, art. III, subds. (a)-(b).)
Defendant's written submissions between August 2019 and April 2020 did not include all of the information required by section 1389, article III, subdivision (a). Moreover, the information he provided was neither certified by the appropriate prison officials nor transmitted pursuant to the statutory requirements. Although defendant claims to have complied with article III "in all significant respects," he clearly did not. (See, e.g., People v. Lavin, supra, 88 Cal.App.4th at pp. 615-617 [prisoner's direct submissions to prosecutor and court "did not substantially comply with the requirements of section 1389, article III"]; People v. Rhoden, supra, 216 Cal.App.3d at pp. 1252-1253 [same]; People v. Cella, supra, 114 Cal.App.3d at p. 917 ["Although such informal notice is not prohibited by the [IAD], it ... does not activate the provisions of article III"]; People v. Castoe, supra, 86 Cal.App.3d at p. 491 [holding a prisoner's direct correspondence with district attorney and superior court "is not sufficient by itself to put section 1389 into effect"].)
Furthermore, the 2019 submissions were presented as applications for a writ of habeas corpus ad prosequendum. (Fn. 2, ante.) The issuance of such a writ "is not a detainer within the meaning of the [IAD] and thus does not trigger the application of the [IAD]." (United States v. Mauro, supra, 436 U.S. at p. 349.) We also note that "[n]o appeal lies from an order denying a petition for writ of habeas corpus." (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064.) Insofar as the superior court's rejection of the documents constituted a denial of habeas corpus relief, defendant's only recourse was to file "a new habeas corpus petition in a higher court." (Briggs v. Brown (2017) 3 Cal.5th 808, 836.) Review is not available on direct appeal. (Ibid.)
We further note that defendant's April 2020 motion did not seek relief under the IAD; it was based on his constitutional right to a speedy trial. (See People v. Garner, supra, 224 Cal.App.3d at pp. 1370-1371 [prisoner's self-prepared "speedy trial motion" held insufficient to invoke the protections of the IAD].) Defendant's motion was submitted without any evidence (see fn. 3, ante), and his appellate briefing fails to explain why the motion should have been granted (see People v. Martinez (2000) 22 Cal.4th 750, 754-756 [discussing requirements for establishing a meritorious speedy trial claim under the state and federal Consts.]). Therefore, reversible error has not been shown.
2. Defendant's Pro Se Motions to Dismiss
Defendant's self-prepared motions to dismiss were rejected for filing in October 2021 because they lacked proofs of service and had no scheduled hearing date. The superior court was independently justified in rejecting the motion in the drug/gun case because defendant was represented by counsel at the time. "Motions and briefs of parties represented by counsel must be filed by such counsel." (People v. Clark (1992) 3 Cal.4th 41, 173.) "Where the party is not permitted personally to participate in conducting the case, pro se filings by that party may be returned unfiled [citation], or, if filed, may be stricken [citation]." (People v. Harrison (2001) 92 Cal.App.4th 780, 788.)
Defendant argues that despite "technical imperfections," each motion "appears on its face to have been meritorious." We disagree. Both motions were submitted without any supporting evidence. (See fn. 4, ante.) Defendant did not even allege the existence of all facts necessary to establish grounds for relief under the IAD. The judgments are presumed correct, and it is defendant's burden to affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) He has not met his burden.
3. Defendant's Statement in Mitigation and Oral Motion to Dismiss
Defendant's statement in mitigation, which was prepared and filed by his appointed counsel, included a request for dismissal made "pursuant to Penal Code [section] 1381 as explained in [Crockett v. Superior Court, supra, 14 Cal.3d 433]." (Original italics omitted.) Reliance upon those authorities was misplaced. Section 1381 is similar to section 1389 in many respects, "but it is inapplicable to persons incarcerated out of state." (People v. Dial (2004) 123 Cal.App.4th 1116, 1121, italics added.) The Crocket opinion concerns section 1381 and does not address the IAD, i.e., section 1389.
Construing the statement in mitigation as a motion to dismiss based on the IAD would not help defendant because, like all his other motions, it lacked admissible evidence. Defense counsel included some documents with the two-page statement, but counsel made no attempt to authenticate them. The statement in mitigation only contained a parenthetical directive to "see attached documents." Defense counsel's subsequent oral motion to dismiss relied entirely upon the statement in mitigation.
"Authentication of a writing is required before it may be received in evidence." (Evid. Code, § 1401, subd. (a).) Authentication is defined as "the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is." (Id., § 1400.) The use of attorney declarations to authenticate exhibits is "routine in law and motion practice" (Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 523), but it was not done here. Defense counsel did not even explain what the attached documents were purported to be.
One reason the IAD requires a prisoner's article III request to be made through prison officials and certified by those officials is to ensure the veracity of the certified information. (See People v. Wilson (1977) 69 Cal.App.3d 631, 636 ["This procedure reduces the necessity of the district attorney's office screening all manner of communications to determine the validity of [a prisoner's] request for an immediate trial"].) Here, the lack of authentication is significant because certain documents attached to defendant's statement in mitigation do not appear anywhere else in the appellate record. They ostensibly show that defendant submitted a section 1389, article III request to Oklahoma prison officials on November 17, 2020. But the documents contain strange anomalies, and the appellate record suggests defense counsel received them directly from defendant or defendant's family members shortly before the originally scheduled sentencing hearing.
Most notably, an undated typewritten form labeled as a "CERTIFICATE OF INMATE STATUS" was purportedly signed by Oklahoma prison officials. The form indicates defendant was sentenced to a nine-year prison term in Oklahoma. Although the form contains a space to indicate "[t]he time already served," someone made handwritten edits to make it say "[t]he time to serve," and next to it is "3288 DAYS." That is consistent with the stated aggregate term of nine years, but the IAD requires certification of both "the term of commitment under which the prisoner is being held [and] the time already served." (§ 1389, art. III, subd. (a).) More puzzling is the next line of the form, where someone entered "1782" in a space designated for the "[t]ime remaining to be served on the sentence." If defendant had 1,782 days left to serve on his nine-year sentence, that would mean he had already spent more than four years (1,506 days) in custody. On the next line, the notation "N/A" was entered regarding "[t]he amount of good time earned." If the certificate was in fact prepared in November 2020, the information would indicate defendant had been in custody since approximately October 2016, which is impossible given his multiple arrests in California in 2018.
Assuming the documents are authentic, there is still no evidence of a procedurally compliant article III request ever being mailed by Oklahoma prison officials and received by the district attorney and superior court. (§ 1389, art. III, subds. (a), (b); see Fex v. Michigan, supra, 507 U.S. at p. 52 ["We hold that the 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him"]; People v. Nguyen, supra, 82 Cal.App.5th at p. 896 [same].) Defendant also concedes that the record "discloses nothing by way of explanation as to why [he] was not brought to Kern County before March of 2022." If the delay was caused by negligence or misconduct on the part of Oklahoma prison officials, dismissal of the charges was not an available remedy for the unproven IAD violation. (Fex, at pp. 49-52; see U.S. v. Lualemaga (9th Cir. 2002) 280 F.3d 1260, 1264 [reasoning "it would not be fair to penalize the receiving [s]tate" for the sending state's negligence].) Because defendant's claim fails for the above reasons, we need not address the People's other arguments for affirmance.
The Attorney General argues defendant waived or forfeited his IAD claims by entering into the plea agreement. California cases generally hold that "a guilty plea does not constitute a waiver of a violation of the IAD properly asserted before the plea is entered." (People v. Brooks, supra, 189 Cal.App.3d at p. 870, italics added; accord, People v. Cella, supra, 114 Cal.App.3d at p. 915, fn. 5.) The issue, therefore, would be whether defendant's pro se submissions were sufficient to preserve the claim. The Attorney General also contends the district attorney's initiation of the procedures under article IV of the IAD superseded any later attempts by defendant to invoke article III. A similar argument was made in People v. Nguyen, supra, 82 Cal.App.5th 888 but, as here, the appellate court did not reach it because the appellant's claim was rejected on other grounds. (Id. at p. 895, fn. 9.)
4. Ineffective Assistance of Counsel (IAC)
Defendant's opening brief alleges IAC to the extent "this court finds that the motion to dismiss was not timely filed or appropriately presented." We have arguably concluded the motion was not "appropriately presented" given its lack of supporting evidence. But this does not necessarily mean defendant has an IAC claim that is resolvable on direct appeal.
"A defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Cudjo (1993) 6 Cal.4th 585, 615.) "[C]ertain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding." (People v. Mickel (2016) 2 Cal.5th 181, 198.) Here, the appellate record does not show the existence of admissible evidence sufficient to establish defendant ever had a potentially meritorious claim for relief under the IAD. "Because [the] claim of ineffective assistance of counsel relies on matters outside the appellate record, a petition for habeas corpus is a proper vehicle for getting the matter before the court." (People v. Cotton (1991) 230 Cal.App.3d 1072, 1083.)
II. Plea Agreement Claims A. Additional Background
The change of plea hearing took place on April 8, 2022. Following unreported settlement negotiations, the trial court recited the terms of the agreement on the record.
The court then engaged in a discussion with the parties:
"[THE COURT:] Is that what you expect to have as a result of this plea, [defense counsel]?
"[DEFENSE COUNSEL]: Yes, Judge.
"THE COURT: And, [prosecutor]?
"[PROSECUTOR]: Yes.
"THE COURT: [Defendant], is that what you intend on doing today?
"THE DEFENDANT: Yes. Could I have clarification though, on the credits?
"THE COURT: I'm not going to get into your credit situation. I explained that to [your attorney off the record]. You are trying to claim credits from an Oklahoma commitment. And if you are entitled to those, you will get those credits. But I don't have any way of being able to calculate those credits today. And so this is not contingent upon any credit calculation from what you did in Oklahoma. Do you understand that, sir?
"THE DEFENDANT: It was my understanding that it was contingent on the credit that was based not on the Oklahoma time but at the time the hold or detainer was placed on me.
"THE COURT: That is, but I am still not in a position today to calculate that. I don't want to tell you what those credits are because when we have additional information if the calculation comes out different I don't want that to hold up this deal. So you will get all the credits you're entitled to based on when the hold was placed on you is my understanding.
"THE DEFENDANT: Okay.
"THE COURT: I don't know when that hold was placed on you. I don't know how long you spent in custody as of today. We may have that information. And then I'll be candid with you, once you go to state prison, [California Department of Corrections and Rehabilitation] does their own calculations for your overall credits as well.
"THE DEFENDANT: Okay.
"THE COURT: So you understand I'm not going to speculate today as to what your credits are, and I'm not going to tell you or promise you any specific amount of credits when we come back for sentencing on May 6th if we enter this plea today. Do you understand that?
"THE DEFENDANT: I understand.
"THE COURT: Are you still willing to go through with the deal that I set forth on the record here?
"THE DEFENDANT: Yes. I was just trying to clarify as far as on the record that it's my-because the reason that I'm agreeing to the plea bargain is because my-I understand what the detainer would-the hold was set to where when the time is computed at that sentencing that I will have time served.
"THE COURT: I am not telling you you will have time served.
"THE DEFENDANT: Okay.
"THE COURT: So I don't know if you will or not. You may. You may not. But if you do, great. And if you don't, that will not be a reason for you to be able to withdraw your plea moving forward. Do you understand that? So if you're not confident and comfortable in doing this, I get that, and I'm okay with that. But we need to know that today because we're not going to unwind this plea 30 days from now because there was a difference in the understanding of what credits were going to be. Do you understand my position?
"THE DEFENDANT: I understand your position.
"THE COURT: So ultimately it's up to you to decide if you want to go forward understanding that I do plan on giving you the credits you are entitled to receive, but I just don't know what they are. And I don't want to commit to you today. It wouldn't be right for me to tell you you're going to get credit time served when I don't know that for a fact, okay?
"THE DEFENDANT: Okay.
"THE COURT: And so I don't want you to think oh, this is credit time served when I can't tell you that for sure.
"THE DEFENDANT: Okay.
"THE COURT: Okay. Do you want to still go forward today?
"THE DEFENDANT: Yes, because my attorney has advised me as far as the statutes go to the hold, so I'm confident with that.
"THE COURT: Okay. I just want to be clear. And I think we are. I think you and I understand each other. Is that fair to say?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. And I respect you wanting to know this information, and I'm trying to give you the information that I have, and I want to be honest with you. I don't think it does either of us any good if I say, oh, yeah, we'll figure that out and it will be credit. I-no, I'm telling you I don't know what your credits are going to be. This case is not going to be resolved today based on any promise about what credits will be. Do you understand that?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. [Defense counsel], do you need any additional time to talk to [defendant] about that?
"[DEFENSE COUNSEL]: I don't think so, Judge. What I advised him was that he should get credit from the time the hold was placed on him in Kern County until he was released from Oklahoma, and that should be concurrent, but
"THE COURT: And he'll continue to get credits for any time he has spent since he's been transferred back here to Kern County while he's been in custody. Even from today forward you'll continue to earn credits."
A form plea agreement signed by defendant and his counsel was filed on the same day as the change of plea hearing. It was not signed by the trial court or the prosecutor. The first page of the form contains handwritten explanations of the terms and conditions of the plea agreement. The record does not indicate who wrote the information. The last handwritten entry on the form is a parenthetical notation that appears to say, "Credit 12/7/18," which defendant initialed inside of the parentheses. As the People astutely observe in their briefing, this handwriting differs from that which sets forth all other terms and conditions on the page. The People surmise defendant made this notation himself while initialing and signing the form.
On April 28, 2022, the probation department prepared a report ultimately filed on June 9, 2022, containing its calculations of defendant's presentence credits. It recommended that defendant receive credit for his incarceration period in Oklahoma only from December 5, 2018, through April 17, 2019. The starting point corresponded to the date defendant was arrested in Oklahoma, but the record does not explain the significance of April 17, 2019, except to say he was thereafter "serving an unrelated commitment in the Department of Corrections in Oklahoma."
As previously discussed, the sentencing hearing originally scheduled for May 6, 2022, was continued to June 9, 2022, pursuant to multiple defense requests for additional time to "analyze the credits." On June 8, 2022, defendant filed his statement in mitigation. It contained an unsworn statement written by defense counsel alleging, "Defendant's plea was in anticipation of getting full credit for the time he served in custody, both in California and in Oklahoma, which would allow the [p]rosecution to get the convictions desired but would allow [d]efendant to have enough custody to be released."
At sentencing, the trial court adopted the probation department's calculation of defendant's presentence credits. At no time prior to the imposition of sentence did defendant or his counsel seek to withdraw his pleas. However, the following exchange took place immediately after the pronouncement of judgment:
"THE DEFENDANT: Is withdrawing my plea denied?
"THE COURT: [Defense counsel], he's now saying he wants to withdraw his plea after I've imposed sentence.
"[DEFENSE COUNSEL]: I suppose we'll need to look at it and see what we need to do.
"THE COURT: I'm actually going to deny that request as untimely. Thank you. I've already entered judgment.
"[DEFENSE COUNSEL]: Very good. Thank you.
"THE COURT: There are other measures he can take, but a motion to withdraw at this stage is improper. [¶] Thank you. That will be all."
B. Law and Analysis
Defendant claims he is "entitled to either specific performance of [the plea] agreement, or to withdrawal of his no contest pleas." As an initial matter, we note the merits of defendant's belated motion to withdraw are not at issue. Although his briefing includes arguments concerning the typical grounds for withdrawing a plea (mistake, ignorance, various forms of involuntariness), those contentions are largely irrelevant to his claim for specific performance.
"In a criminal case, judgment is rendered when the trial court orally pronounces sentence." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Section 1018 requires that motions to withdraw pleas be made "before judgment or within six months after an order granting probation is made if entry of judgment is suspended." Therefore, to the extent defendant's remarks were intended as a motion to withdraw, the motion was properly denied. There is no indication he made any postjudgment motions to withdraw his pleas, so his arguments regarding whether the pleas were knowing and voluntary will not be considered in this appeal. (See People v. Turner (2002) 96 Cal.App.4th 1409, 1413 ["by failing to move to withdraw his plea in the trial court, defendant has forfeited the claim on appeal that his plea was entered involuntarily"].)
Next, we note defendant is not alleging his presentence credits were miscalculated. "Persons who remain in custody prior to sentencing receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction." (People v. Duff (2010) 50 Cal.4th 787, 793, italics added, citing § 2900.5.) Put differently, "a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." (People v. Bruner (1995) 9 Cal.4th 1178, 1191.) Defendant's briefing concedes "he would not typically be entitled to time spent serving a sentence in Oklahoma while awaiting trial in California, because the Oklahoma custody is attributable not to this case but to another commitment."
Frankly, it is unclear from the record how the trial court and probation department concluded defendant was entitled to any credit for the time he spent incarcerated in Oklahoma. The Attorney General speculates he "received credit for the time he was in Oklahoma custody prior to the Oklahoma [s]tate conviction and sentence," apparently suggesting defendant's pretrial incarceration there was solely because of his outstanding warrant(s) in California. (See In re Joyner, supra, 48 Cal.3d at p. 492 [credit for pretrial detention in another state required, at minimum, evidence defendant "could have obtained release had the California hold not been placed against him"].) Defendant offers no explanation.
It does appear defendant was misinformed by his attorney below regarding his entitlement to presentence credits for the Oklahoma custody time. The attorney admitted to advising defendant "that he should get credit from the time the hold was placed on him in Kern County until he was released from Oklahoma," though it is unclear exactly what counsel meant by his use of the term "hold." (See fn. 5, ante.) However, defendant has not alleged IAC with respect to the plea agreement.
Specific performance is an equitable remedy available in the context of a broken plea agreement, typically effectuated by "an order directing fulfillment of the bargain." (People v. Kaanehe (1977) 19 Cal.3d 1, 13.) Therefore, the question presented is whether the failure to credit all of defendant's Oklahoma custody time against his current sentence was a breach of the plea agreement. The standard of review is de novo. (People v. Paredes (2008) 160 Cal.App.4th 496, 507.)
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] '... If contractual language is clear and explicit, it governs. [Citation.] On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it."'" (People v. Shelton (2006) 37 Cal.4th 759, 767.) Here the promisors were the trial court and the prosecutor, and defendant was the promisee. (Id. at pp. 767-768.)
Defendants can waive their rights to credit for time served (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055), but presentence credits are otherwise nonnegotiable. Entitlement to such credits is governed by statute, and calculating the credits is "purely mathematical." (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.) "The calculation of credits is not discretionary and there are no 'choices.'" (Ibid.) Defendant was apparently misadvised by his own counsel as to how his presentence credits would be calculated, but the record does not show the prosecutor or the trial court made any such promises.
Defendant cites United States v. De La Fuente (9th Cir. 1993) 8 F.3d 1333 at page 1337, footnote 7, for the proposition that any ambiguities in the plea agreement should be construed in his favor. The relevant passage says it is a defendant's "reasonable beliefs that control." (Ibid.) The trial court's oral recitation of the terms and conditions of the plea agreement was silent on the issue of credits. So, too, was the plea form defendant signed, with exception of the cryptic notation, "Credit 12/7/18." To whatever extent the notation could have rendered the agreement ambiguous, the ambiguity was dispelled and resolved by the trial court's extensive warnings during the plea colloquy.
The trial court told defendant the plea agreement was "not contingent upon any credit calculation from what you did in Oklahoma." The lengthy exchange ended with the trial court saying, "I'm telling you I don't know what your credits are going to be. This case is not going to be resolved today based on any promise about what credits will be. Do you understand that?" Defendant responded affirmatively. We cannot conclude defendant reasonably believed the trial court meant the exact opposite of what it said.
At most, defendant was promised he would receive an unspecified amount of presentence credit for time he spent imprisoned in Oklahoma. And he did. The trial court ultimately awarded him 227 days of actual time served, plus another 226 days of conduct credit for the same time period. The terms of the plea agreement were not breached, so the remedy of specific performance is not applicable.
DISPOSITION
The judgments are affirmed.
WE CONCUR: LEVY, Acting P. J. MEEHAN, J.