Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of, Los Angeles County Super. Ct. No. BA278932, Stephen A. Marcus, Judge. Affirmed and remanded for further proceedings.
California Appellate Project, Jonathan B. Steiner, Executive Director, Ronnie Duberstein, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
Following our August 1, 2006, opinion, the United States Supreme Court granted defendant Andy Mills’s petition for writ of certiorari with respect to his upper term sentence, and vacated the judgment and remanded the case to this court for further consideration in light of Cunningham v. California (2007) 539 U.S. ___ [127 S.Ct. 856]. This opinion is substantially the same as our prior opinion, except for its discussion of defendant’s upper term sentence in light of Cunningham v. California.
The District Attorney of Los Angeles County filed a complaint charging defendant and appellant Andy Mills (defendant) with receiving stolen property in violation of Penal Code section 496, subdivision (a) and possession of ammunition in violation of section 12316, subdivision (b)(1). The complaint alleged, as to each offense, that defendant suffered a prior felony conviction within the meaning of section 667.5, subdivision (b).
All statutory citations are to the Penal Code unless otherwise noted.
On March 4, 2005, defendant waived his right to a preliminary hearing and accepted a plea agreement. Pursuant to the plea agreement, defendant entered a plea of nolo contendere to receiving stolen property. The trial court suspended imposition of sentence and granted defendant probation for three years on certain terms and conditions; including the conditions that he serve 180 days in county jail with credit for 74 days (50 days of actual custody credit and 24 days of conduct credit); that he obey all laws; and that he not own, use, or possess any dangerous or deadly weapons, including knives. The trial court dismissed the possession of ammunition charge, and, among other things, imposed a restitution fine of $210 pursuant to section 1202.4, subdivision (b).
On May 6, 2005, Montebello Police Department Detective Steve Sharpe received a radio call concerning a man, suspected of violating section 415, running from 1111 West Washington. A description of the man was given, including the fact that the man was possibly armed with a knife. Detective Sharpe observed defendant running suspiciously near Washington Boulevard. Defendant matched the description of the suspect described in the radio broadcast. Detective Sharpe identified himself to defendant as a police officer and ordered defendant to stop. Defendant fled, and Detective Sharpe chased and ultimately arrested him. Officer Hugo Flores searched defendant and found a folding pocket knife in defendant’s pocket.
Thereafter, defendant’s probation was revoked and he was found to be in violation of his probation for possessing a deadly or dangerous weapon – a knife, and for failing to obey all laws. On August 11, 2005, the trial court sentenced defendant to the upper term of three years in state prison with credit for 328 days (180 days he served as a condition of probation; 99 additional days of actual custody following defendant’s May 6, 2005, arrest; and 49 days of additional conduct credit based on the 99 additional days of actual custody) and ordered that defendant pay a restitution fine of $400, an increase from the $210 restitution fine the trial court imposed when it granted probation.
On appeal, defendant contends that the trial court erred in increasing his restitution fine from $210 to $400. He also contends that under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 539 U.S. ___ [127 S.Ct. 856] (Cunningham), the imposition of the upper term sentence for his conviction for receiving stolen property, based on facts neither found by the jury nor admitted by him, violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process under the Fifth, Sixth, and Fourteenth Amendments. We hold that the trial court erred in increasing defendant’s restitution fine from $210 to $400 and order the abstract of judgment modified to reflect a restitution fine of $210 and a corresponding suspended parole revocation restitution fine of $210 pursuant to section 1202.45. We also hold that defendant’s claim that his constitutional rights were violated by the trial court’s imposition of the upper term sentence is without merit.
We requested supplemental briefing from the parties addressing the issue of whether defendant’s presentence credits were calculated properly. Because the record does not disclose the dates defendant was in actual custody during the period from and including the date of his arrest on May 6, 2005 to and including the date of his sentencing on August 11, 2005, we remand this case to the trial court to determine defendant’s actual custody for that period and to recalculate his presetence credits. The modified abstract of judgment is to include defendant’s recalculated credits.
DISCUSSION
I. Defendant’s Restitution Fine
Citing People v. Chambers (1998) 65 Cal.App. 4th 819, 823 and People v. Arata (2004) 118 Cal.App. 4th 195, 202, defendant argues that the trial court imposed an unauthorized sentence when it increased from $210 to $400 the restitution fine it imposed pursuant to section 1202.4 when it granted probation. Defendant contends that the restitution fine and the corresponding $400 parole revocation restitution fine imposed pursuant to section 1202.45 must be reduced to $210. We agree.
Section 1202.4, subdivision (b) provides in pertinent part: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . .”
Section 1202.45 provides in pertinent part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person's parole is revoked.”
A trial court errs when it increases the amount of a previously imposed restitution fine upon the revocation of probation. (People v. Johnson (2003) 114 Cal. App.4th 284, 306-308; accord People v. Downey (2000) 82 Cal. App.4th 899, 921; see also People v. Arata, supra, 118 Cal. App.4th at pp. 201-202 [“a trial court has no statutory authority to order a second restitution fine upon revocation of probation”]; People v. Chambers, supra, 65 Cal. App.4th at pp. 821-823 [same].) “[A] restitution fine imposed as a condition of probation remain[s] in force despite revocation of probation.” (People v. Arata, supra, 118 Cal. App.4th at p. 202.)
Respondent contends that the trial court properly increased defendant’s restitution fine. In support of this contention, respondent suggests that defendant’s argument that the trial court erred is supported by only two published cases (People v. Arata, supra, 118 Cal. App.4th 195 and People v. Chambers, supra, 65 Cal. App.4th 819), “[b]oth authored by the same jurist.” Other published opinions reach conclusions consistent with the reasoning in People v. Arata and People v. Chambers. (See People v. Johnson, supra, 114 Cal. App.4th at pp. 306-308; People v. Downey, supra, 82 Cal. App.4th at p. 921.) Moreover, in People v. Johnson and People v. Downey, respondent agreed with the holdings in People v. Arata and People v. Chambers, conceding in those cases that the trial court had erred by imposing an increased restitution fine. (People v. Johnson, supra, 114 Cal. App.4th at p. 307; People v. Downey, supra, 82 Cal. App.4th at p. 921.)
Respondent contends that we can find the increased restitution fine in this case appropriate because subdivision (b)(2) of section 1202.4 provides that a trial court “may determine the amount of the [restitution] fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” Because this subdivision “appears to contemplate” the calculation of the restitution fine “upon actual imposition of a state prison sentence,” respondent reasons, a trial court may recalculate a restitution fine when probation is revoked and a state prison sentence is imposed. We do not so interpret subdivision (b)(2). Subdivision (b)(2) is simply an example of a formula that a trial court may use, in its discretion, to calculate a restitution fine. It is not reasonably interpreted as permitting an upward modification of such a fine.
II. Defendant’s Upper Term Sentence
Defendant contends that the trial court’s imposition of the upper term sentence based on facts not found true beyond a reasonable doubt by a jury violated his federal constitutional rights to a jury trial and to due process under the federal Constitution. We disagree.
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court held that California’s determinate sentencing law violated the Sixth Amendment insofar as it authorized trial judges, rather than juries, to make factual findings that expose defendants to upper term sentences. (Cunningham, supra, 127 S.Ct. at pp. 868-871.) Following Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Further, “under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. Citation. Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements . . . the upper term sentence is the ‘statutory maximum.’ ” (Ibid.)
The Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions” (Black, supra, 41 Cal.4th at p. 819), including “whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’” within the meaning of California Rules of Court, rule 4.421(b)(2). (Id. at pp. 819-820; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) Furthermore, although California law requires proof beyond a reasonable doubt of alleged prior convictions used to justify a recidivist sentence (see, e.g., People v. Bowden (2002) 102 Cal. App.4th 387, 392-393, 125 Cal. Rptr.2d 513), facts relating to prior convictions found to be aggravating circumstances for purposes of imposing an upper-term sentence are not subject to proof beyond a reasonable doubt, but may be found by a preponderance of the evidence. (Black, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, as the Supreme Court concluded in Black, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Among the facts a trial court is permitted to find under Black in connection with a defendant’s “prior conviction” is whether the defendant served a prior prison term. (Id. at p. 819 [citing People v. Thomas (2001) 91 Cal. App.4th 212, 220-223 for the proposition that “the exception recognized in Apprendi [v. New Jersey (2000) 530 U.S. 466] for ‘“the fact of a prior conviction’” permits a trial court to decide whether a defendant has served a prior prison term”].)
In sentencing defendant to the upper term, the trial court stated that it was relying on defendant’s “record at the time of the offense.” The trial court discussed some of defendant’s numerous sustained juvenile petitions – a review of the probation report shows seven sustained juvenile petitions – and his two adult criminal convictions. The trial court then set forth the aggravating circumstances on which it based defendant’s upper term sentence. In part, the trial court found that defendant “has engaged in a pattern of violent conduct, which indicates he’s a serious danger to society. His prior convictions as an adult and as a juvenile are numerous and are of increasing seriousness. I can’t see anyone who has more serious ones that he has. [¶] He has two assaults with deadly weapons. He has a couple robberies, burglaries. He has served prior prison terms. He was on probation and parole when he committed the crime. And his prior performance on probation or parole was unsatisfactory. [¶] For whatever it’s worth, both in the case he’s on probation and the case in front of me, he tries to elude and run away from the police.” The trial court found no mitigating circumstances.
A trial court properly may find, on its own, the fact that a defendant’s offenses are numerous or of increasing seriousness and that a defendant has served a prior prison term. (Black, supra, 41 Cal.4th at pp. 818-819.) Thus, defendant’s criminal history made him eligible for the upper term. (Ibid.) Once defendant was eligible for the upper term, the trial court was entitled to consider all of the factors it relied on in sentencing defendant to the upper term. (Id. at p. 813.)
Defendant also contends that Black, supra, 41 Cal.4th 799 was wrongly decided in a number of respect. As defendant acknowledges, however, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant also contends that the application of Black’s “altered version” of the determinate sentencing law on appeal violates due process and the “ex post facto prohibition.” We disagree. “[T]he prohibition on ex post facto laws applies only to statutory enactments, not to judicial decisions.” (People v. Sandoval (2007) 41 Cal.4th 825, 855.) Due process is satisfied because the statute governing defendant’s offense put him on notice that he could receive the upper term. (See id. at pp. 856-857.)
III. Defendant’s Presentence Credits
Presentence credits are calculated under section 4019. (People v. Brown (2004) 33 Cal.4th 382, 405.) “Under section 4019, presentence conduct credit is calculated ‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ (People v. Fry (1993) 19 Cal. App.4th 1334, 1341 [24 Cal. Rptr.2d 43].)” (People v. Williams (2000) 79 Cal. App.4th 1157, 1176, fn. 14.) In our credit calculations, we include the date of arrest (People v. Lopez (1992) 11 Cal. App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989) 211 Cal. App.3d 523, 525-526). We treat a partial day in custody as a whole day for calculation purposes. (People v. Smith, supra, 211 Cal. App.3d at p. 526.)
Defendant served a total of 180 days, with combined actual custody and conduct credit of 74 days, as a condition of his grant of probation. Defendant subsequently was arrested on May 6, 2005, for the conduct that led to the revocation of his probation and the imposition of sentence on his receiving stolen property conviction. The trial court sentenced him on August 11, 2005. For this additional period of custody, the trial court awarded defendant an additional total of 148 days of presentence credit consisting of 99 days of actual custody credit and 49 days of conduct credit. Combining the two periods of custody, the trial court awarded defendant a total of 328 days of presentence credit.
The 99 day period the trial court awarded defendant for actual custody appears to have been defense counsel’s calculation of the period from and including the date of defendant’s arrest (May 6, 2005) to and including the date of his sentencing hearing (August 11, 2005). If defendant was in custody for that entire period, however, he was entitled to credit for only 98 days (May – 26 days, June – 30 days, July – 31 days, and August – 11 days). In addition to his 98 days of actual custody credit, defendant would have been entitled to an additional 48 days of conduct credit: 98 divided by 4 rounded down equals 24, multiplied by 2 equals 48. Thus, if defendant was in custody from May 6, 2005 to August 11, 2005, defendant should have received a total of 146 days of presentence credit for the period of custody following his May 6, 2005 arrest (98 actual plus 48 conduct). The parties agree that, if defendant was in custody from May 6, 2005 to August 11, 2005, the trial court erred in awarding defendant 328 days of conduct credit.
In our request for supplemental briefing from the parties, we noted an apparent conflict in the record concerning defendant’s actual custody following his May 6, 2005 arrest. The record appears to reflect that defense counsel represented to the trial court at defendant’s sentencing hearing that defendant had been in custody from the date of his arrest on May 6, 2005, until he was sentenced on August 11, 2005. The Clerk’s Transcript appears to indicate, however, that on June 6, 2005, defendant was not in custody and that he remained out of custody until June 10, 2005, when his probation was revoked and he was “remanded to custody.” The parties agree that the record appears to reflect that defendant was remanded to custody on June 10, 2005.
Respondent argues that based on defendant’s apparent remand date of June 10, 2005, defendant was entitled to only 63 days of actual custody following his May 6, 2005 arrest (June – 21 days, July – 31 days, and August – 11 days) and a resulting 30 days of conduct credit. Defendant makes no argument with respect to the recalculation of his credits based on a remand date of June 10, 2005. The record does not support respondent’s suggested recalculation because we are unable to determine from the record when defendant was released from custody following his May 6, 2005 arrest. Respondent’s recalculation assumes, without support from the record, that defendant was released on May 6, 2005. Because we are unable to determine the period defendant was in actual custody following his arrest on May 6, 2005, we remand this case to the trial court for a determination of the period defendant was in actual custody during the period from and including his May 6, 2005 arrest to and including his August 11, 2005 sentencing, and a recalculation of defendant’s presentence credits for that period.
We note that respondent’s calculation improperly fails to award credit for the day of defendant’s May 6, 2005 arrest. (People v. Lopez, supra, 11 Cal. App.4th at p. 1124.)
DISPOSITION
The judgment is modified by reducing the $400 restitution fine to $210. The parole revocation restitution fine is reduced to $210 and shall be suspended unless defendant’s parole is revoked. The case is remanded to the trial court for a determination of the period defendant was in actual custody during the period from and including May 6, 2005 to and including August 11, 2005 and a recalculation of defendant’s presentence credits for that period. The trial court shall then enter an amended abstract of judgment reflecting defendant’s reduced fines and recalculated presentence credits. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed.
We concur: TURNER, P. J. KRIEGLER, J.