Opinion
H047502
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM ARELLANO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1802796, C1884127, C1905685)
Defendant Abraham Arellano pleaded no contest to various crimes in two superior court cases and admitted violating his probation in a third. The trial court sentenced him to a five-year county jail sentence under Penal Code section 1170, subdivision (h), as called for in the plea agreement. On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal, which he has done.
All further statutory references are to the Penal Code unless otherwise indicated. --------
We obtained supplemental briefing from the parties regarding whether the trial court correctly calculated defendant's presentence credits in each case. The parties argued that the trial court erred; we agree. Accordingly, we will modify the judgment to correct errors in the award of presentence credits and affirm the judgment as modified.
I. BACKGROUND
Around midnight on February 19, 2018, police were dispatched to a Rite Aid in Los Gatos after the business's alarm was activated. They found defendant inside the business with merchandise and cash on his person. The cash registers were open and cash was missing. Police found car keys in defendant's pocket; they located the vehicle those keys operated parked outside the Rite Aid. They determined that the vehicle had been stolen. Paperwork bearing defendant's name was found inside the vehicle.
Defendant was charged in case No. C1884127 with second degree burglary (§ 460, subd. (b)), two counts of receiving a stolen vehicle (§ 496d), driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), and misdemeanor driving with a suspended license (id., § 14601.1, subd. (a)). On July 6, 2018, defendant pleaded no contest to second degree burglary (§ 460, subd. (b)) and two counts of receiving a stolen vehicle (§ 496d, subd. (a)) in exchange for the dismissal of the other charges, three years of formal probation, and 300 days in county jail.
On August 9, 2018, the trial court suspended imposition of sentence in case No. C1884127 and placed defendant on formal probation for three years. Among other probation conditions, the trial court ordered defendant to serve 300 days in county jail, which the court deemed satisfied by time served.
In case No. C1802796, defendant was charged with driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 1) and second degree robbery (§ 212.5, subd. (c); count 2). As to count 1, it was alleged that defendant had previously been convicted of a felony violation of section 496d (§ 666.5). Both crimes were alleged to have been committed on or about October 7, 2018.
In case No. C1905685, defendant was charged with two counts of resisting or deterring an officer (§ 69, subd. (a)), assault on a peace officer by means likely to produce great bodily injury (§ 245, subd. (c)), possession of a weapon while in custody (§ 4502, subd. (a)), and battery on a correctional officer (§ 243.1, subd. (a)).
On June 5, 2019, defendant (1) admitted a probation violation in case No. C1884127; (2) pleaded no contest to driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) and admitted the prior conviction allegation (§ 666.5) in case No. C1802796; and (3) pleaded no contest to one count of resisting or deterring an officer (§ 69, subd. (a)), possession of a weapon while in custody (§ 4502, subd. (a)), and battery on a correctional officer (§ 243.1, subd. (a)) in case No. C1905685. The plea agreement called for defendant to serve five years in county jail pursuant to section 1170, subdivision (h) with "no tail," meaning no post-release supervision. At the time of his plea, defendant was represented by counsel from the Public Defender's Office.
The trial court held a sentencing hearing on October 22, 2019. At that hearing, defendant (now proceeding pro per) moved to have his case transferred to a different department (Drug Court). The trial court informed him that such a transfer was inconsistent with his plea agreement, such that he would first have to move to withdraw his plea. Defendant made that motion. In support of both motions, defendant argued the transfer was in his best interest because he believed better services and programs would be available in Drug Court. The trial court denied both motions.
The court then imposed a five-year county jail sentence pursuant to section 1170, subdivision (h)(5)(a). Specifically, the court imposed sentence as follows: the upper term of three years for resisting or deterring an officer (§ 69, subd. (a), case No. C1905685); one year (one-third the middle term of three years) for possession of a weapon while in custody (§ 4502, subd. (a), case No. C1905685) to run consecutively; eight months (one-third the middle term of two years) for battery on a correctional officer (§ 243.1, subd. (a), case No. C1905685) to run consecutively; the middle term of three years for driving or taking a vehicle without consent with a prior conviction (Veh. Code, § 10851, subd. (a)); § 666.5, case No. C1802796) to run concurrently; and a consecutive four months for the probation violation in case No. C1884127.
The court imposed a general order of restitution and waived all fines and fees. In case No. C1884127, the court awarded defendant a total of 120 days of presentence credits, consisting of 60 days of actual custody and 60 days of conduct credits under section 4019 and deemed his four-month sentence served. In case No. C1802796, the court awarded defendant a total of 636 days of presentence credits, consisting of 318 days of actual custody and 318 days of conduct credits under section 4019. In case No. C1905685, the court awarded defendant a total of 396 days of presentence credits, consisting of 198 days of actual custody and 198 days of conduct credits under section 4019. The court dismissed all remaining counts.
Defendant timely appealed.
II. DISCUSSION
Defendant's written submission requests "leniency" and represents that "CD[C]R provides programs for youth offenders" that are unavailable to him because he was sentenced pursuant to section 1170, subdivision (h) and is serving his sentence in county jail. Even assuming that is true, it does not constitute grounds for challenging defendant's sentence or attacking the validity of his plea.
Our independent review of the record disclosed an apparent error with respect to the calculation of defendant's presentence credits. In response to this court's request for supplemental briefing on the issue of presentence credits, the parties assert that the trial court erred, although they disagree as to precisely how the credits should be calculated.
Defendant was sentenced on October 22, 2019; he had been in custody since October 7, 2018. In case No. C1884127, the court awarded defendant 120 days of presentence credits (60 days of actual custody plus 60 days of conduct credits under section 4019) and deemed his four-month sentence served. The probation report shows that credits were awarded in that case from October 7, 2018 through December 8, 2018 and that credits were awarded in case No. C1802796 beginning on December 9, 2018. But defendant earned 63 days of actual custody credit between October 7, 2018 and December 8, 2018, not 60 days. He had earned 60 days of actual custody credit on December 5, 2018.
Based on the foregoing, defendant's counsel argues that defendant should have begun earning credit in case No. C1802796 on December 6, 2018. The Attorney General argues that defendant should have begun earning credit in case No. C1802796 on December 8, 2018. According to the Attorney General, defendant needed more than 120 days of presentence credits to satisfy his four-month sentence because "month" refers to a calendar month, not 30 days. We agree with the Attorney General. (See § 7, subd. (13) [in the Penal Code, "[t]he word 'month' means a calendar month"].) The manner in which credits were awarded indicates the trial court contemplated defendant serving the four-month sentence first. The first four months defendant was in custody ran from October 7, 2018 through February 6, 2019. There are 123 days in that time period. Alternatively, if the four-month sentence begins to run on the day of sentencing, it likewise is satisfied after 123 days (October 22, 2019 through February 21, 2020). Thus, defendant needed 123 days of presentence credits to satisfy the four-month sentence. December 7, 2018 was defendant's 62nd day in custody. Accordingly, defendant should have been granted 124 days of presentence credits (62 days of actual custody plus 62 days of conduct credits under section 4019) in case No. C1884127. And he should have begun earning credit in case No. C1802796 on December 8, 2018.
In fact, the trial court awarded defendant presentence credits in case No. C1802796 beginning on December 9, 2018 and running through October 22, 2019 for a total of 636 days of presentence credits (318 days of actual custody plus 318 days of conduct credits). Because the court should have begun awarding defendant credits in that case one day earlier, it should have awarded him a total of 637 days of presentence credits (319 days of actual custody plus 318 days of conduct credits).
We will modify the judgment accordingly.
III. DISPOSITION
The judgment is modified (1) to reflect an award of 62 days of actual custody, 62 days of conduct credits, and 124 total days of presentence credits in case No. C1884127 and (2) to reflect an award of 319 days of actual custody, 318 days of conduct credits, and 637 total days of presentence credits in case No. C1802796. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment that reflects the correct award of presentence credits and to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
BAMATTRE-MANOUKIAN, J.