Opinion
A130499
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM TROY ADKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR139731)
Defendant William Troy Adkins entered a plea of no contest to a charge of felony vandalism (Pen. Code, § 594, subd. (b)(1) ), and admitted that he thereby violated a grant of probation. The trial court suspended imposition of sentence and admitted defendant to probation for three years on specified conditions. The matter of the presentence custody and conduct credits due defendant was taken under submission, with the parties being allowed to file briefing. Only defendant did so. By reason of an extensive stay in Napa State Hospital, defendant calculated that he was entitled to 1050 days of credit. In an "Order Re Credits" filed on November 16, 2010, the court disagreed with some of defendant's calculations, but ultimately concluded that defendant was entitled to 1057 credits. Defendant filed a timely notice of appeal from that order.
All further statutory references are to the Penal Code.
Under section 2900.5, a person sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credits against his or her sentence for performing assigned labor and complying with institutional restrictions. (§ 4019, subds, (a), (c).) This latter form of credits is commonly called conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Up to January 25, 2010, section 4019 allowed conduct credits to be accrued at the rate of two days for every four days of time served under section 2900.5. By an October 2009 enactment, the Legislature amended section 4019 to accelerate the pace for accruing custody credits. Effective January 25, 2010, defendants could now accrue custody credits at the rate of four days credit for every two days actually served. (Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50 [former § 4019, subd. (f)].) However, the enactment exempted every defendant who "is required to register as a sex offender . . . , was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5 . . . ." (Id. [former § 4019, subds. (b)(2), (c)(2)].)
Section 4019 was again amended, effective September 28, 2010, to undo the October 2009 amendments as applied to defendants whose offenses were committed prior to those amendments. (Stats. 2009-2010, ch. 426, § 2 [§ 4019, subd. (g)]; see Stats. 2010-2011, 1st Ex.Sess., ch. 12, § 35.)
Defendant claims the benefit of this change. The Attorney General contends he is not entitled to additional credits because the measure is not retroactive to crimes committed before its passage. As the parties are aware, the issue has generated a split of opinion in the Courts of Appeal, and the Supreme Court has granted review to resolve the matter. (E.g., People v. Brown (2010) 182 Cal.App.4th 1354, rev. granted June 9, 2010, No. S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, rev. granted June 9, 2010, No. S181808.) We assume the Attorney General is aware that we have concluded that retroactive application of the amended version of section 4019 is proper. (People v. Landon (2010) 183 Cal.App.4th 1096, rev. granted May 20, 2010, No. S182808.) Pending the Supreme Court's decision, we continue to adhere to that view.
We admit some puzzlement that this amendment appears to have gone unconsidered by defendant in his postsentencing brief, or by the trial court in its order, because the retroactivity controversy was in full flower at the time, and the Supreme Court had already granted review to consider the matter. Instead, the trial court based its analysis on People v. Mendez (2007) 151 Cal.App.4th 861 and People v. Callahan (2006) 144 Cal.App.4th 678. Yet the Attorney General makes no effort to defend or vindicate the trial court's analysis. Instead, the Attorney General argues that because defendant had a prior violent felony, even though the allegation of that conviction was dismissed when defendant pled no contest to the vandalism charge, he is not entitled to the benefits of the first amended version of section 4019. The final level of our puzzlement is that defendant asked for "1050 credits in [action] CR139731," and he was awarded 1057 credits in that action. In other words, he got more than he asked for—and still he appealed.
Further uncertainty is attributable to the fact that two additional actions— Nos. CR131980 and CR139008—were apparently informally consolidated with action No. CR138731 and resolved as a package. Without getting into the particulars, defendant seems to believe that he was entitled to additional credits in the other actions beyond the 1057 days he was given under CR139731, an argument that reads as follows:
"Where multiple proceedings are in play, it is not always a straightforward matter to determine a defendant's entitlement to presentence credits under section 2900.5, subdivision (b). (People v. Bruner (1995) 9 Cal.4th 1178, 1194.) Accordingly, '[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a "but for" cause of the earlier restraint.' (Id. at pp. 1193-1194.) '[A]lthough] section 2900.5 does not expressly limit credit to situations where the custody is "exclusively" attributable to a charge of which a defendant is later convicted, 'it is clearly provided that credit is to be given "only where" custody is related to the "same conduct for which the defendant has been convicted." . . .' [Citation.]" (In re Marquez (2003) 30 Cal.4th 14, 21.) In a mixed conduct case ' "the defendant has the burden . . . to prove entitlement to presentence custody credits by showing that such custody was "strict[ly] caus[ed]" by the same conduct for which he is convicted and to be sentenced." [Citation.]' (People v. Purvis (1992) 11 Cal.App.4th 1193, 1196.)
"Because the court herein applied an erroneous 'exclusivity' standard (see Marquez, supra, at p. 21), it failed to consider whether appellant was in custody in No. CR131980 (the matter in which he was on probation and was facing revocation proceedings) as a result of the same conduct for which he was in custody in No. CR139731 (the window-breaking incident, which was the basis of the present charge). The court applied that standard in a written order, made without a hearing, after it had taken the question of credits "under submission.' Thus, [the trial court] did not afford appellant an opportunity to submit evidence on that issue."
Whatever our level or levels of uncertainty, they do not extend to acceding to defendant's position.
It is perfectly clear from the transcript of defendant's sentencing that both the court and counsel were aware that there was more than one action at issue. At that hearing defendant counsel asked for 897 credits, with "only 10 [being] 4019 credits." This figure was less than the 1050 days defendant requested in the postsentencing brief, and, as previously noted, both figures were smaller than the 1057 days actually awarded by the trial court.
We have searched in vain through defendant's briefs for a precise number of additional credits to which he believes he is entitled, still less an allocation between section 2900.5 credits and section 4019 credits, and a further allocation as among which of the three action numbers appear in the record. There is no way this court can have knowledge of these fact-dependent circumstances that would be greater than that possessed by the trial court. Defendant was given an opportunity at which he could have argued against the alleged error he now claims was made by the trial court in its postsentencing credit calculation. He failed to do so, raising the matter for the first time on this appeal. Thus, with respect to the trial court, defendant failed to carry his burden of establishing his entitlement to additional credits. (People v. Purvis, supra, 11 Cal.App.4th 1193, 1196.) Moreover, these are precisely the category of single-issue disputes that are governed by section 1237.1, which directs that the first attempt to resolve them should be in the trial court. (People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12; People v. Clavel (2002) 103 Cal.App.4th 516, 518-519; People v. Acosta (1996) 48 Cal.App.4th 411, 420.) We leave defendant to that remedy.
Which provides in pertinent part: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim to the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction . . . in the trial court."
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The order of probation is affirmed.
Richman, J.
We concur:
Haerle, Acting P.J.
Lambden, J.