Opinion
C041269.
7-11-2003
THE PEOPLE, Plaintiff and Respondent, v. TOBIE JAY VALIN, Defendant and Appellant.
Pursuant to a negotiated agreement that he would be sentenced to no more than 20 years in prison, defendant Tobie Jay Valin pleaded guilty to multiple charges in two open felony cases (case Nos. 011852 and 011974), and admitted violating his probation in a third (case No. 002607). On April 16, 2002, he was sentenced to 18 years in prison, then filed a notice of appeal limited to matters occurring after the entry of his pleas and admissions.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Following our review of the record, we sought supplemental briefing from the parties concerning whether this court should review the accuracy of the award of presentence credit although no formal motion to correct the presentence credit award was made in the trial court. Both defendant and respondent agreed this court may review an award of presentence custody under the Wende procedure. We have done so.
Both parties also acknowledged that if we discovered an error in presentence credit requiring factual findings, we should remand the case to the trial court with instructions to determine the amount of credit to be awarded. We shall remand this case to the trial court for a hearing.
On February 18, 2003, defendant requested we take judicial notice of his October 4, 2002, letter to the trial court requesting presentence credit in case No. 002607, the district attorneys October 16, 2002, opposition to the courts consideration of defendants letter, and the trial courts October 17, 2002, order. We hereby do so.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. 002607
On December 7, 2000, the juvenile court found the 17-year-old defendant unfit for juvenile court, and accepted his guilty plea to battery with serious bodily injury (Pen. Code, § 243, subd. (d)) on September 26, 2000, and driving a car without the owners permission on October 9, 2000. (Veh. Code, § 10851.) Defendant admitted personally inflicting great bodily injury on the victim, and stated he understood the battery conviction could be used as a strike. (§ 1192.7.) Defendant was then in custody.
Undesignated statutory references are to the Penal Code.
On January 9, 2001, defendant was still in custody. Imposition of sentence was suspended, and defendant was placed on probation for three years, on condition he spend one year in the county jail. No notice of appeal was filed. According to the probation report filed April 11, 2002, defendant was released from the Siskiyou County Jail sometime in July 2001.
The plea was taken by Judge Schaefer. The sentencing was done by Judge Henry. Apparently the probation officer recommended one year in the county jail for the misdemeanor only, which was followed by the court. No time credits were mentioned or awarded.
According to an affidavit for a warrant signed September 25, 2001, and a court order revoking probation filed October 1, 2001, defendant was not then in custody.
Case Nos. 011852 and 011974
Defendant appeared in court in custody in case Nos. 002607 and 011852 on October 4, 2001, and in case No. 011974 on October 23, 2001.
Defendant was charged in case No. 011852 with three counts of robbery with use of a knife (§§ 211, 12022, subd. (b)), one count of assault with a deadly weapon (§ 245, subd. (a)(1)), and three counts of dissuading witnesses with use of a knife (§§ 136.1, subd. (c)(1), 12022, subd. (b).)
Defendant was charged in case No. 011974 with assault with a deadly weapon and inflicting corporal injury on a child. (& sect;§ 245, subd. (a)(1), 273d, subd. (a).) In both cases, defendant was alleged to have one prior serious felony conviction (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On March 19, 2002, in case No. 011852, defendant pleaded guilty to three robberies, using a knife (§§ 211, 12022, subd. (b)(1)), and attempting to dissuade one robbery victim from testifying. (§ 136.1.) Defendant admitted the prior serious felony (strike) conviction.
In the same proceeding, defendant pleaded guilty to assault with a deadly weapon in case No. 011974. Defendant admitted violating his probation in case No. 002607, due to his new crimes.
Sentencing
On April 16, 2002, defendant was sentenced in case No. 011852 to the low term for robbery on count 1 (two years doubled because of the strike allegation), for a total of four years; three years for dissuading a witness on count 5 run consecutively under section 1170.15 (doubled because of the strike allegation), for a total of six years; one year for use of a knife on count 5; and, in case No. 011974, to two years consecutive for assault with a deadly weapon (one year doubled because of the strike), and a five year enhancement for the prior violent felony. In case No. 002607, defendant was sentenced to three years to be served concurrently with the other charges.
On the new cases, the trial court awarded credit for 196 actual days, limiting conduct credits to 29 days under the 15 percent limit of section 2933.1. The trial court imposed a restitution fine of $ 200 under section 1202.4, and an additional suspended $ 200 fine under section 1202.45.
DISCUSSION
I.
Following the filing of the notice of appeal, appellate counsel wrote to the sentencing court, requesting an award of custody credit for the three-year concurrent probation revocation sentence in case No. 002607. On October 16, 2002, the district attorney filed an opposition to defendants motion, appending a copy of the first version of People v. Clavel (Oct. 8, 2002, formerly at 102 Cal.App.4th 973 (Clavel), rehg. granted & mod. in People v. Clavel (2002) 103 Cal.App.4th 516). The district attorney argued the letter request should be denied because it was not a formal motion. The sentencing court filed an order October 17, 2002, declining to rule on defendants request because an informal letter is no longer "authorized," citing section 1237.1, and Clavel. The trial court further opined that there was no problem with the presentence credit award, and that defendant had "agreed" with the numbers.
The first Clavel opinion was vacated on November 1, 2002. A modified opinion was filed with a new footnote explaining that a trial court may rule on presentence credit issues raised by letter:
"We do wish to make clear, however, that nothing in this opinion prohibits counsel from initially attempting to resolve the credit miscalculation issue by way of an informal letter to the trial court. Nor is there any court rule that prohibits the trial court from entertaining an informal letter and ruling on the matter if the court so chooses. (See, e.g., Cal. Rules of Court, rule 201(j).)" (People v. Clavel (2002) 103 Cal.App.4th 516, 519, fn. 4.)
Because the parties agree we may review the issue, it is clear to us the trial court erroneously failed to award any presentence credit on the concurrent three-year sentence imposed in case No. 002607, as required by section 2900.5. Our review of the record discloses that defendant spent considerable time in custody before the original sentencing, after the original sentencing, and after his arrest on the companion cases that gave rise to his probation violation. Some presentence time is not attributable to any other case; other presentence time was attributable to several unrelated cases and already may have been allocated. (§ 2900.5; In re Marquez (2003) 30 Cal.4th 14, 21-22.) Nothing appears in the record before us that would justify the complete elimination of presentence credit.
The correct amount of presentence credit should be calculated by the trial court. A failure to accurately award presentence credit results in an unauthorized sentence, correctable at any time. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 7, 885 P.2d 1040; In re Sandel (1966) 64 Cal.2d 412, 418, 50 Cal. Rptr. 462, 412 P.2d 806.) Since the calculation of custody credits does not involve sentencing "choices" and is non-discretionary on the part of the trial court, waiver doctrine does not apply. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.) Defendant appears to be entitled to an award of credit in case No. 002607.
We agree with the parties that the trial court is in the best position to make the factual determination concerning the amount of attributable presentence credit.
II.
We note an additional error. Following the imposition of the prison sentences and the award of credit on the new cases, the trial court imposed a mandatory restitution fine of $ 200 under section 1202.4, and a "stayed" parole revocation fine under section 1202.45. The abstract reflects those fines.
However, at the time defendant was placed on probation in case No. 002607, a $ 200 fine had been imposed under section 1202.4. That fine survives the probation revocation and should be included on the abstract of judgment. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.) When the prison sentence was imposed in case No. 002607, the trial court was then required to impose the matching parole revocation fine. (People v. Andrade (2002) 100 Cal.App.4th 351, 357.) We hereby modify the judgment to include the $ 200 restitution fine under section 1202.4, and the $ 200 suspended fine under section 1202.45 in case No. 002607.
III.
The minute order for the sentencing hearing on April 16, 2002, contains a notation that the remaining counts in case Nos. 011862 and 011974 were dismissed. That did not occur. We hereby dismiss counts 4, 6, and 7 in case No. 011852, and count 2 in case No. 011974.
DISPOSITION
The case is remanded to the superior court. The superior court shall hold a hearing and determine the amount of presentence credit to be awarded in case No. 002607 under section 2900.5 and applicable conduct credit statutes. The judgment is modified in case No. 002607 to include a suspended parole revocation restitution fine of $ 200. The superior court shall issue a modified abstract of judgment to include: 1) applicable presentence credit in case No. 002607; 2) a restitution fine of $ 200 under section 1202.4, and a suspended $ 200 fine under 1202.45, subdivision (b), in case No. 002607. The superior court clerk shall issue a modified and corrected abstract of judgment, and forward a certified copy to the Department of Corrections. As modified, the judgments are affirmed.
We concur: HULL, J., and KOLKEY, J.