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People v. Barba

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
Jan 31, 2020
C088579 (Cal. Ct. App. Jan. 31, 2020)

Opinion

C088579

01-31-2020

THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY BARBA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR2513202)

Sentenced to three years in state prison, defendant Mark Anthony Barba contends that this court should remand for resentencing in order to award defendant the correct number of days of presentence custody credit. The Attorney General agrees with defendant, and we agree with the parties.

FACTUAL AND PROCEDURAL BACKGROUND

A first amended complaint filed May 15, 2017, charged defendant with acquiring and retaining personal identifying information (count I; Pen. Code, § 530.5, subd. (c)(3)), forgery of a check (count II; §§ 473, subd. (b), 476), shoplifting (count III; § 459.5), and theft of lost property (count IV; § 485). As to count I, the complaint alleged defendant had previously served four prior prison terms and had not remained free of prison custody or the commission of a new felony for five years. (§ 667.5, subd. (b).)

Undesignated statutory references are to the Penal Code.

On June 2, 2017, pursuant to a plea agreement, defendant pleaded no contest to count I in return for the dismissal of the balance of the charges and a stipulated two-year county jail sentence.

The factual basis for the plea, as stated by the prosecutor, was that on August 27, 2016, in Amador County, defendant was found in possession of a backpack that contained seven California driver's licenses, two California identification cards, a California benefits card in another name, and checks bearing the names of seven people.

On July 17, 2017, the trial court denied probation and imposed the stipulated sentence. The court awarded defendant 177 days in presentence custody credits (89 actual days and 88 conduct days). The court ordered a $300 restitution fine, a $40 court operations assessment, and a $30 conviction assessment. Defendant was ordered to surrender on August 4, 2017, to begin serving his sentence; he gave a Cruz waiver. (People v. Cruz (1988) 44 Cal.3d 1247.)

On August 4, 2017, defendant did not appear for sentencing, and the trial court found his failure to appear willful.

On November 8, 2018, the trial court sentenced defendant on the current case and a trailing case from San Joaquin County. The court imposed the upper term of three years in state prison on count I and resentenced defendant to eight months on the trailing case, consecutive to the sentence on count I. The court reimposed the restitution fine in the present case along with a matching suspended parole revocation restitution fine, the court operations assessment, and the conviction assessment. The court awarded defendant 124 days of presentence custody credit in the present case (62 actual days and 62 conduct days), and no additional credit in the trailing case.

DISCUSSION

I

Defendant contends the matter must be remanded for recalculation of his custody credits. The Attorney General agrees, and so do we. The record of defendant's sentencing reveals that it is impossible to determine the correct number of credits with certainty. The only thing we can be sure of is that the actual award must be wrong.

At defendant's original sentencing on July 17, 2017, the trial court awarded him 177 days of presentence custody credit. At defendant's final sentencing on November 8, 2018, the court awarded 124 days, purportedly encompassing both cases on which defendant was sentenced or resentenced on that date. However, because the record available to the court and the parties did not make clear how many days defendant had already spent in custody, and on which of his two cases, the court's final award is factually unsupported.

The probation officer's presentence report, dated June 20, 2017, stated that defendant was entitled to 72 days of credit for time served and 72 days of conduct credit (144 days total) up to and including June 30, 2017, when sentencing was originally set. The report also stated that defendant had been in custody in the present case from August 27 to September 2, 2016, at Amador County Jail, on April 27, 2017, at San Joaquin County Jail, and from April 28 to June 30, 2017, at Amador County Jail, a total of 72 days.

Defendant's sentencing hearing was continued to July 6, 2017, and again to July 17, 2017. On the latter date, the trial court sentenced defendant to two years in county jail and awarded 177 days of presentence custody credit (89 days of custody credit, including the period July 1 to July 17, 2017, plus 88 days of conduct credit).

When defendant failed to appear for sentencing as promised on August 4, 2017, a no-bail arrest warrant was issued.

On October 4, 2018, defendant appeared in Amador County Superior Court, having been produced from Deuel Vocational Institution (DVI). Nothing in the record shows how long he had been at DVI or when he was first placed in custody in San Joaquin County after his original sentencing in the present case.

Defendant's case was continued from October 4 to October 11, 2018, then to November 8, 2018. On October 11, 2018, the trial court ordered the district attorney to obtain the abstract of judgment in defendant's San Joaquin County case (case No. STK-CR-2018-4192).

We granted respondent's request for judicial notice of the abstract. It shows that on June 21, 2018, defendant was convicted of stalking in San Joaquin County and sentenced to the low term of one year four months, with execution of sentence at the initial sentencing hearing. It also shows defendant was awarded 122 days of presentence custody credit (62 actual days and 60 conduct days). It does not show the beginning and ending dates of defendant's presentence custody in that case, or the exact date on which he was placed in custody pursuant to the sentence. There is no evidence in the record as to how long he was in custody in San Joaquin County after his original sentencing there.

At the sentencing hearing on November 8, 2018, the following discussion took place:

Defense Counsel: "My client . . . [is] asking about his credits, and I

"The Court: There's a problem with the credits on the abstract.

"[Defense Counsel]: Okay.

"The Court: [Under] 2900.5 subsection (c), you can't get dual credits out of two courts, and he's got some. So we've got to sort that out. What we'll do is -- let me finish the sentence we're working on.

". . . And as to the credits, the probation report gives him credits for his time in custody in San Joaquin County, and those credits were accounted for in the abstract of June 22nd. So he has Amador credits of seven, and has Amador credits of 64, for 71. So he gets 71 plus 70. The Court will give him the credits that he obtained in San Joaquin County as part of our abstract, but I won't double count them. . . . [¶] . . . [¶]

By "the abstract of June 22nd," the trial court apparently meant the San Joaquin County abstract of judgment. --------

"The Court: He's got an extra day credit on San Joaquin that I can't double -- I can give him that credit, but I can't give him the extra credits that he has for this case.

"[Defense Counsel]: I apologize, Your Honor. Could we start again with the credits issue?

"The Court: Okay. He has credits in Amador County, which he's entitled to, that are set forth in the presentence report.

"[Defense Counsel]: And that's 71.

"The Court: But he's not entitled to credit for the time in San Joaquin, because that's accounted for in this abstract.

"[Defense Counsel]: And by CDC.

"The Court: Yes.

"[Defense Counsel]: Okay. So why do you [i.e., defendant] think there's 87 credits?

"[Discussion off the record between [Defense Counsel] and the defendant.]

"[Defense Counsel]: Your Honor, my client is indicating . . . that at the time he pled that he was told that he had 87 days out of this county.

"The Court: Well, I'm looking at what they put on their report on page 10. They showed the dates he was in custody and the time. And they gave him 71 days' credit. If there's a dispute on credits, he can always recapture them or run a writ, he doesn't lose them. But I don't have anything that shows what he says.

"[Defense Counsel]: I understand. This happened a long time ago. I don't even think I was the attorney at the time, and I have no independent memory.

"[Prosecutor]: Your Honor, I'm checking right now. It looks like J&S was initially set for June 30th and Judge Hermanson put it over for a Cruz waiver hearing to July 6th, so that may be the additional days we're talking about.

"[Defense Counsel]: June 30th to what?

"[Prosecutor]: June 30th to July 6th. He was released on a Cruz waiver

"The Court: But by then he was getting credits under 2933. He gets them from the Department of Corrections. So he can't get double credits. That's the problem. So I'll award the credits

"[Defense Counsel]: Your Honor, could we pass -- so let -- why don't we come back in a week and

"[Prosecutor]: He's sentenced.

"Defense Counsel]: -- let me think about that.

"The Court: The arithmetic doesn't change.

"[Defense Counsel]: Well, it may not -- [¶] . . . [¶]

"The Court: . . . Credits are not complicated.

"[Defense Counsel]: I understand that . . . But I wasn't sure whether he was going to get credits in the other case for . . . that extra week, because . . . I thought he was given a Cruz waiver on that particular day. Again, I was not the attorney at the time, if I recall correctly.

"The Court: Actually, I'm glad he brought it up. Our credits are incorrect. Because if you look at the abstract, the credits run through June the 21st. Our probation sentence report gives him credits through June 30th. He can't have those credits because he belonged to the Department of Corrections, 2933. So he loses those credits. So he gets -- he has nine days less, actually 18 days, nine plus nine. He gets the following credits: From August 27th to September the 2nd, seven days. He got a San Joaquin credit that's included in the abstract of one day. He has Amador credits from . . . April 28th, according to the report, until June 30th. However, he was committed to the Department of Corrections on June 21st. Therefore, he loses those credits.

"[Defense Counsel]: . . . Your Honor, . . . could we pass this matter? This does not sound accurate to me, and . . . I need to sit down and look at the dates. . . . [¶] . . . [¶]

"The Court: He has 55 days' credit plus seven out of Amador. That's 62. So out of Amador he gets 124. He already got the one day out of San Joaquin. The court declines to pass the matter. It's adjustable by way of writ or appeal."

As the parties agree, the trial court's calculations were flawed.

First, nothing in the record supports the trial court's finding that the single day in 2017 that defendant spent in custody in San Joaquin County (April 27) was attributable, or solely attributable, to the case in that county. As the Attorney General notes, the abstract of judgment for that case shows only that the crime occurred in "2017-2018," without stating the date on which it began; furthermore, nothing in the abstract shows that defendant was awarded custody credit in that case for April 27, 2017.

Second, the trial court did not acknowledge defendant's prior award of 177 days of presentence custody credit in the present case. The court appears to have assumed that most of defendant's time in custody in 2017 was attributable to the San Joaquin County case, rather than the present case. But no evidence before the court justified its conclusion that the 62 days of credit granted in the San Joaquin County case overlapped the credits in this case.

Since we cannot calculate a correct award on this record, remand is necessary for the trial court to do so.

DISPOSITION

The matter is remanded for further proceedings consistent with the opinions expressed herein.

/s/_________

RAYE, P. J. We concur: /s/_________
BUTZ, J. /s/_________
HOCH, J.


Summaries of

People v. Barba

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
Jan 31, 2020
C088579 (Cal. Ct. App. Jan. 31, 2020)
Case details for

People v. Barba

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY BARBA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)

Date published: Jan 31, 2020

Citations

C088579 (Cal. Ct. App. Jan. 31, 2020)