Opinion
C083685 C083727
11-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEX LEONARD AZEVEDO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR58243) (Super. Ct. No. CR58244)
In 2013, defendant Alex Leonard Azevedo was convicted of corporal injury on a cohabitant, a felony (Pen. Code, § 273.5, subd. (a)) and was sentenced to state prison. On August 13, 2014, defendant was released from prison and placed on postrelease community supervision (PRCS).
Further undesignated statutory references are to the Penal Code.
About 2:54 a.m. on August 30, 2016, while on PRCS, defendant punched R.H. in front of a gas station, claiming he believed R.H. had done something to defendant's father. Officers who responded to the scene observed objective signs and symptoms of stimulant use. Defendant failed all field sobriety tests. Defendant admitted that he had recently used methamphetamine and had been using for a week. Officers arrested defendant for violating the terms of PRCS (§ 1203.2), specifically, Health and Safety Code section 11550, subdivision (a) (using or being under the influence of a controlled substance). Defendant was transported to the police department for a urine test. Defendant failed to comply with testing, by flinging preservative out of the bottle and refusing to take the test. When seated in, and handcuffed to, a chair, defendant became very belligerent and kicked a bulletin board, toppling it over. Defendant stood up and swung his chair, attempting to strike the officers. In securing defendant, one officer sustained an abrasion on her knuckle.
A petition for revocation of PRCS in case No. CR58244 filed on August 31, 2016, alleged that defendant violated the conditions of his release by failing to obey all laws, using methamphetamine as evidenced by failing drug abuse recognition tests, and failing to submit to chemical testing.
An information in case No. CR58243 filed September 23, 2016, charged defendant with resisting an officer by use of force and violence (§ 69; count I), fighting in a public place, a misdemeanor (§ 415, subd. (1); count II), and using or being under the influence of methamphetamine, a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count III). Defendant entered a negotiated plea of guilty to count I in exchange for the prosecutor's agreement to recommend probation and the dismissal of counts II and III. Violation of PRCS in case No. CR58244 was submitted on his plea in case No. CR58243. The court took judicial notice of the plea and the terms and conditions of PRCS and found defendant in violation by failing to obey all laws and using methamphetamine as evidenced by failing the drug abuse recognition tests with the remaining allegation (failing to submit to a chemical test) stricken.
At sentencing, defendant sought substitute counsel. After hearing and denying defendant's request, the court indicated it planned to grant probation in case No. CR58243 (resisting offense). Defendant refused to be placed on formal probation. The court then denied probation, concluded mandatory supervision would be inappropriate, and sentenced defendant to three years in county jail. (§ 1170, subd. (h).) The court did not award any custody credits. For the PRCS violation, case No. CR58244, the court imposed a 180-day term to be served consecutively and awarded 169 days of credit. The court found "the offense punished in case No. CR58243 [(resisting an officer by use of force and violence)] is factually separate from the defendant's PRCS violation."
Defendant appeals. He contends (1) the consecutive 180-day county jail term was unauthorized, (2) custody credits should be applied to both cases, (3) he is entitled to three additional days of presentence custody credit, and (4) to the extent any issue is considered forfeited for failure to object, counsel rendered ineffective assistance.
The People agree that, under the circumstances of this case, the 180-day term for the PRCS should not have been ordered to run consecutively, and defendant is entitled to three additional days of credit. They argue, however, that defendant is not entitled to dual custody credit. We agree with the People.
I
Defendant contends the trial court imposed an unauthorized sentence when it imposed a consecutive 180-day term for the PRCS violation, arguing that a term of confinement for a PRCS violation is not a "sentence" within the meaning of section 669.
Returning a defendant to prison on a parole violation is not a "sentence" for purposes of consecutive sentencing under section 669. (People v. Mathews (1980) 102 Cal.App.3d 704, 713; see People v. Reed (1993) 17 Cal.App.4th 302, 307.)
Section 669, subdivision (a), provides, in relevant part, as follows: "When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively."
PRCS is similar to parole in many respects. (People v. Superior Court (Rangel) (2016) 4 Cal.App.5th 410, 421; People v. Gutierrez (2016) 245 Cal.App.4th 393, 399-404; see also Couzens & Bigelow, Felony Sentencing After Realignment (May 2017) p. 103, at <www.courts.ca.gov/partners/documents/felony_sentencing.pdf>, archived at <https://perma.cc/SK7R-CTBS> ["It is unlikely the court has the ability to impose a term in jail as a sanction for violation of PRCS, then impose a new substantive term consecutive to the PRCS term," citing Mathews, supra, 102 Cal.App.3d at p. 713 and concluding that violations of PRCS "are the functional equivalent of parole violations"].)
Section 3455, subdivision (a) provides, in relevant part, as follows:
"Upon a finding that the person has violated the conditions of postrelease community supervision, the revocation hearing officer shall have authority to do all of the following:
"(1) Return the person to postrelease community supervision with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
"(2) Revoke and terminate postrelease community supervision and order the person to confinement in a county jail.
"(3) Refer the person to a reentry court pursuant to Section 3015 or other evidence-based program in the court's discretion."
Subdivision (d) of section 3455 provides: "Confinement pursuant to paragraphs (1) and (2) of subdivision (a) shall not exceed a period of 180 days in a county jail for each custodial sanction."
Here, defendant's violations of PRCS, failing to obey all laws and using methamphetamine, with the remaining allegation, failing to submit to chemical testing, stricken, were included in the conduct underlying his conviction in case No. CR58243, that is, resisting an officer by force or violence which occurred when defendant refused to submit to chemical testing. In finding defendant violated PRCS, the trial court took judicial notice of defendant's plea to resisting, the substantive offense. We accept the People's concession and conclude that the 180-day term for the PRCS violation should not be consecutive, but rather concurrent, to defendant's sentence in case No. CR58243.
II
Defendant next contends that the 169 days of custody credit the trial court awarded towards his 180-day county jail term for the PRCS case should have also been awarded towards his sentence in case No. CR58243. In the event the issue is deemed forfeited, defendant contends counsel rendered ineffective assistance.
Even if not forfeited, the People claim defendant is not entitled to credit in both cases because he cannot demonstrate that he would have been free from custody but for the conduct underlying the charges in case No. CR58243. We agree.
The People also argue that counsel was not ineffective because the trial court imposed consecutive sentences which prohibited awarding dual credit. (§ 2900.5, subd. (b).) As previously discussed, defendant's sentences should have been concurrent. --------
Section 2900.5, subdivision (a) provides in pertinent part: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, . . . shall be credited upon his or her term of imprisonment . . . ." However, subdivision (b) specifies that "credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted."
People v. Bruner (1995) 9 Cal.4th 1178 held that section 2900.5 credits should be denied "when a defendant sentenced to a new criminal term seeks credit for presentence custody attributable to a parole revocation caused in part, but not exclusively, by the conduct that led to the new sentence." (Bruner, at pp. 1182-1183, fn. omitted.) "[A] prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. Thus, . . . , his criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. [Citations.]" (Id. at p. 1191.) Bruner held "where 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. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was 'a' basis for the revocation matter as well." (Id. at pp. 1193-1194.) The defendant bears the burden of establishing that the conduct leading to the current conviction was the sole reason for his loss of liberty during the presentence period. (Id. at p. 1194, fn. 10.) Bruner concluded, "Because defendant has not shown that he could have been free during any period of his presentence custody but for the same conduct that led to the instant conviction and sentence, he is not entitled to credit on that sentence for the period of presentence restraint." (Id. at p. 1195.) Section 2900.5 was not intended "to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody." (Bruner, at p. 1192.)
Here, defendant's violations of PRCS, failing to obey all laws and using methamphetamine as evidenced by failing the drug abuse recognition tests, were not the same conduct underlying his conviction in case No. CR58243. Defendant had been arrested for the PRCS violations at the gas station, that is, fighting in public and using or being under the influence of a controlled substance. Defendant was transported to the police department for chemical testing. At the police department, defendant became very belligerent, knocking down a bulletin board, and attempting to throw his chair at the officers. When a struggle ensued to gain control of defendant, an officer sustained an injury which was the basis for his conduct underlying his offense of resisting an officer by force and violence. Contrary to his claim, it was not the same episode. In awarding credit towards the PRCS case, the trial court found that the resisting offense was "factually separate from the defendant's PRCS violation." Defendant has failed to demonstrate that he would have been free from custody but for the conduct underlying the resisting offense.
III
Finally, defendant contends and the People concede that defendant is entitled to an additional three days for a total of 172 days of custody credit. The court awarded 85 actual days and 84 conduct days for a total of 169 days of credit. Defendant was arrested and booked on August 30, 2016, and was sentenced on November 23, 2016, or 86 actual days in custody. We will modify the judgment, amending the presentence custody credits to 86 actual days and 86 conduct days (§ 4019) for a total of 172 days in case No. CR58244.
DISPOSITION
The judgments are modified to provide for concurrent terms in case Nos. CR58243 and CR58244 and 86 actual days and 86 conduct days for a total of 172 days of custody credit towards case Nos. CR58244, the PRCS case. As modified, the judgments are affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Hoch, J.