Opinion
H030304
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JOSE MARTIN URENO, Defendant and Appellant.
NOT TO BE PUBLISHED
Pursuant to a plea bargain, appellant Jose Ureno pleaded no contest to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count of resisting arrest (Pen. Code, § 148, subd. (a)(1)). Appellant admitted that he had a prior strike conviction. (Pen. Code, § 667, subds. (b)-(i).) The court imposed the agreed upon sentence of the lower term of 16 months on the drug charged doubled because of the prior strike conviction. In addition, the court imposed a concurrent one-year jail term for the resisting arrest charge. The court awarded appellant 617 days of presentence custody credits consisting of 529 days for time spent in custody and 88 days for "good-time" and "work-time" credits pursuant to Penal Code section 4019.
Appellant filed a timely notice of appeal.
It is with the award of the good-time/work-time credits that appellant takes issue. Specifically, appellant contends that the trial court abused its discretion when it failed to award him good-time/work-time credits for the period of time he was in custody in jail between June 21, 2005 and June 7, 2006.
Subsequently, in a petition for writ of habeas corpus, which this court ordered considered with the appeal, Ureno contends that his right to a fair and reliable penalty determination was violated by the sentencing courts reliance on incorrect information; that the prosecutions failure to disclose favorable and material information regarding sentencing violated his due process rights; and that trial counsels representation concerning his entitlement to presentence conduct credits constituted ineffective assistance of counsel. By separate order filed this day, we issue an order to show cause. (See Cal. Rules of Court, rule 8.264(b)(2)(A).)
The facts underlying appellants convictions are not relevant to this appeal. However, we relate the facts as they pertain to the sentencing hearing.
Facts
The court sentenced appellant on June 7, 2006. The probation officers report recommended that the court deny appellant good-time/work-time credits for the period of time he spent in jail from June 21, 2005 to February 8, 2006. At appellants sentencing hearing, the prosecutor addressed the court as follows. ". . . Theres two credit sheets, Judge. Theres no dispute that from January 05 till March 05 and March 05 again to 6/05, hes entitled to good-time credits. Where the issue comes in is since June of 05. The People and probations position is given his behavior in the jail that is listed on page four of the probation report, we assert he is not entitled to good-time credits for the June 05-to-today period. So were asking that no good-time credits be given on that period, which would result in 617 credits."
It appears that sentencing was set originally for February 8, 2006.
Defense counsel objected, noting, "I dont know what authority probation and the D.A.s office is coming up with on this case. Its never been done with any of my clients. My client has been a model prisoner over the last few months. You can ask the correctional staff that is present in court and told me so this morning. Hes been in lockdown. He got a year violation for being tased for refusal to come out of his cell. Theres nothing more than that. Theres much more serious conduct violations done in custody with clients that Ive had where theyve always been entitled to their credits. Theres no legal basis or statutory authority for the D.A. or probation to come up with this, all of a sudden saying, No, hes not entitled to 4019 credits. Theyre not the ones that run the jail, either the D.A. or probation. They dont make that determination. Its up to the jail. . . . [Appellant] spent well over a year in lockdown. Hes suffered enough. He should be entitled to the additional 171 days of credit."
The prosecutor responded, "[d]oesnt lockdown speak for itself? I mean, if hes not behaving in jail and needs to be locked down, why would he be entitled to good-time credits?"
The probation officers report detailed three incidents as the basis for the recommendation that the court deny appellant good-time/work-time credits. Further, attached to the report were three "Incident" reports from the San Benito County Sheriffs Office.
The first incident occurred late on the evening of September 8, 2005, when appellant and his cellmate were found to have "pruno" or inmate produced alcohol in their cell. When officers tried to open the cell, appellant and his cellmate jammed the cell door. Appellant refused to leave the cell despite repeated orders so to do. This caused the officers to discharge pepper spray and then to use a taser on appellant before forcibly removing him from the cell. Later, appellant refused to leave the safety cell in which he had been placed. The incident report findings were "POSS OF PRUNO AND BEING INTOXICATED-LOSS OF VISIT AND COMMISSARY."
The second incident occurred on September 24, 2005, when appellant was warned, before going into the exercise yard, not to communicate with inmates in another pod. Despite that warning, appellant communicated with other inmates. Appellant was warned again, but later was observed trying to once again communicate with other inmates. When reprimanded, appellant was disrespectful to one of the officers, yelling profanities at him. This time, the incident report findings were "DISRESPECT TO A C/O-7 DAYS LOCK DOWN NO VISITS OR COMMISSARY DURING THIS PERIOD."
The third incident occurred on October 11, 2005. After collecting breakfast trays, appellants cellmate informed an officer that the window in their cell had been broken. Appellant was in the shower when his cellmate made the report. Appellant and his cellmate were relocated to different housing.
Before ruling on the credits issue, the court noted that it was not "tremendously concerned about" the pruno case. The court went on, "What Id like to look at is what time he had, and I dont think — I think its appropriate to discount that as a loss of that time as well as the ten days in the 9/24/05 incident. As far as 10/11/05, theres been no term determination. Theres been no administrative term determination on that. So let me find out what the time is and then adjust the credits accordingly."
Thereafter, the court, counsel and the probation officer had a conference at the bench off the record.
Subsequently, the court expressed its concern "that good time credits be an encouragement for people to act in a good manner. If probation is going to recommend this and if Im going to follow it, Ill expect that recommendation every time because I think the point is well taken. That being said, there has to be a time when policies have changed at some point, and there has to be an appropriate case where that would change. And lockdown for a year seems like an appropriate circumstance, notwithstanding the fact that theres been good conduct in the last few months. [¶] So Im going to deny the 4019 credits for the period of 6/21/05 to 6/07/06 based upon the history of discipline out at the jail as detailed in the probation report."
Discussion
Appellant contends that remand is required for proper determination of his presentence credits.
"Section 4019 is the general statute governing credit for presentence custody. Absent contrary authority, a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. [Citations.] (People v. Thomas (1999) 21 Cal.4th 1122, 1125 . . . (Thomas ).)" (People v. Philpot (2004) 122 Cal.App.4th 893, 907.)
Often, the phrase "conduct credits" is used to refer to both good-time and work-time credits but the two types of credit are described in two separate subdivisions of Penal Code section 4019. Subdivision (b) of that section applies to work-time credit and it requires that a defendant receive one day of credit for every six days in custody "unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff . . . ." Subdivision (c) applies to good-time credits. It gives a defendant credit of one day for every six days in custody for good behavior "unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff . . . ." Subdivision (d) specifies that nothing in section 4019 shall be construed to require the sheriff "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 . . . ." (Pen. Code, § 4019.)
With respect to presentence custody credit, the sheriff is authorized to provide the sentencing court with information, records and recommendations. (Cal.Rules of Court, rule 4.472; People v. Sage (1980) 26 Cal.3d 498, 509.) In addition, the sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits. (See People v. Johnson (1981) 120 Cal.App.3d 808, 815.)
The purpose of Penal Code section 4019 is to help maintain discipline in jail by encouraging good behavior by incarcerated defendants prior to sentencing. (See People v. Guzman (1995) 40 Cal.App.4th 691, 695; People v. Moore (1991) 226 Cal.App.3d 783, 787; In re Walrath (1980) 106 Cal.App.3d 426, 431.) Given this purpose, the relevant inquiry for the court in determining whether a defendant is entitled to good-time credits is whether he or she has "satisfactorily complied with" the rules and regulations of the jail prior to sentencing. If there is misconduct, the court may deduct all or any part of the credit, depending on the severity of the misconduct regardless of whether the misconduct occurs at the beginning or the end of the confinement. (In re Walrath, supra, 106 Cal.App.3d at p. 431; People v. Duesler (1988) 203 Cal.App.3d 273, 276 (Duesler ); People v. Zuniga (1980) 108 Cal.App.3d 739, 743-744.) For example, in Duesler, the court denied good-time credits because the probation report said that the defendant had violated jail rules on four occasions by being out of bed after lights out, tearing a sheet into strips, fighting over another inmates newspaper, and cooking "inside the tank. " (Duesler, supra, 203 Cal.App.3d at p. 275, fn. 2.)
Thus, conduct credits can be lost only on an affirmative showing that a defendant has engaged in bad behavior while in jail (good-time credits), and has refused to satisfactorily perform labor as assigned or that custodial officials did not offer work because the defendant either refused to perform or failed to comply with the reasonable rules and regulations of the facility (work-time credits). (Pen. Code, § 4019, subds. (b), (c) & (d); People v. Johnson, supra, 120 Cal.App.3d at p. 815.)
Appellant contends that the record fails to "affirmatively demonstrate" that his year or more of "lockdown" was attributable to bad behavior. He argues " Lockdown " was never defined for the record. It appears that defense counsel used the term to refer to a restrictive housing situation not necessarily attributable to bad behavior. Defense counsel used the term in an effort to evoke sympathy for [him] regarding denial of credits."
Appellants attempt to distort the record is unavailing. The trial court did not deny credits because appellant was in lockdown for a year. Rather, the court denied credits "based upon the history of discipline out at the jail as detailed in the probation report."
The probation report referenced the jail incidents that formed the basis of the trial courts withholding of conduct credits. Whether a defendant loses all, or merely a portion, of his good-time credits is within the discretion of the trial court. (People v. Johnson, supra, 120 Cal.App.3d at p. 811.) We will not disturb its decision in the absence of a showing that the decision was irrational or arbitrary. (See People v. Giminez (1975) 14 Cal.3d 68, 72.)
Since the purpose of Penal Code section 4019 is to help maintain discipline in jail by encouraging good behavior by incarcerated defendants prior to sentencing, we cannot say that the trial courts denial of good-time credits based on appellants history of discipline in the jail was irrational or arbitrary. Accordingly, as to the denial of good-time credits we uphold the trial court.
Even if the trial court discounted the window incident, the two remaining incidents were sufficient for the denial of good-time credits.
With respect to the denial of all work-time credits, the record is silent as to whether appellant refused to "satisfactorily perform" assigned labor or that custodial officials did not offer work because appellant either refused to perform or failed to comply with the reasonable rules and regulations of the facility.
Respondent urges that we can infer that the sheriff did not assign appellant any work because of his misconduct and lockdown status from September 8, 2005 through to sentencing. We refuse respondents invitation to make such an assumption. Even though the trial court and counsel noted that appellant was on "lockdown," the record does not affirmatively show why. It is possible as respondent argues that appellant was on lockdown status for a year as a punitive sanction. However, equally, it is possible that the whole jail was on lockdown status for reasons outside of appellants control. Alternatively, as seems likely from defense counsels argument to the court regarding appellant being on lockdown for a year, appellant was subject to an administrative segregational lock—the reasons for which are not apparent from the record.
It makes no sense to say that appellant was on lockdown for a year because of behavioral problems. The record shows that appellant was penalized for the incident where he disrespected a correctional officer by "7 days lock down . . ." If appellant was already on lockdown for behavioral problems there would have been no need to place him on it for this incident.
A defendant can be deprived of work-time credits "only when the opportunity to work has been properly withheld, e.g., because the defendant has escaped or has been denied work because he violated the reasonable rules and regulations of the custodial authority." (People v. Johnson, supra, 120 Cal.App.3d at pp. 811-812.) Moreover, as noted "the burden is on the People to show in the record that defendant is not entitled to such credits. If the record fails to show that defendant is not entitled to such credits by virtue of the provisions of subdivisions (b) and (d), he shall be granted them." (Id. at p. 815.) There was no evidence concerning appellants work performance before the trial court at the time of sentencing. Accordingly, appellant is entitled to a new sentencing hearing limited to the issue of work-time credits.
Disposition
The matter is remanded to the trial court to hold a hearing to determine if appellant is entitled to work-time credits. In all other respects, the judgment is affirmed.
We concur:
RUSHING, P. J.
PREMO, J.