Opinion
A149717
02-14-2017
THE PEOPLE, Plaintiff and Respondent, v. GERALD ROBERT BROWN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR174708)
Defendant Gerald Robert Brown appeals from the sentence imposed after he pled no contest and admitted a repeat offender enhancement. Defendant's counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm the judgment.
BACKGROUND
Defendant was charged in an amended complaint with the felony of receiving stolen property, a motor vehicle (Pen. Code, § 496d, subd. (a), count 1), with a prior conviction for section 496d, which was a sentencing enhancement (§ 666.5). He was also charged with three misdemeanors (possession of burglar's tools, possession of a controlled substance, driving on a suspended or revoked license), and possession of a stun gun by felon, an infraction. The amended complaint also alleged four prison priors within the meaning of section 667.5, subdivision (b).
Further undesignated statutory references are to the Penal Code.
We summarize the facts briefly from the Napa County probation office report, which was itself relying on a police report. On February 11, 2015, defendant was driving a pickup truck when he was stopped shortly after midnight by deputies on routine patrol for changing lanes without signaling. The deputies knew defendant from prior police contacts, knew he had a suspended driver's license, and knew that he was on post release community supervision (PRCS). At first defendant said the truck belonged to his ex-girlfriend. Deputies asked to search the truck, and found a stun gun, an apparent shaved key for a Honda, and a baggie of suspected methamphetamine that had fallen out of defendant's pants leg. Defendant said he had been waiting for a ride from a friend when his ex-girlfriend happened to drive by his home. The truck belonged to her friend. Defendant later changed stories and said he had received the truck from an unknown friend of his ex-girlfriend two days before at the Howard Johnson Hotel in Vallejo, and that he suspected it was stolen because the key appeared shaved and had " 'too many grooves' " on it. After deputies told defendant that the truck had been reported stolen one day ago, defendant said he was " 'spun' (referring to recent methamphetamine use)" and could have received the car the day before. He denied stealing it.
On August 11, 2016, defense counsel acknowledged receipt of the amended complaint. Defendant pled no contest to count 1, and admitted the prior conviction for receiving stolen property alleged in the enhancement, with the understanding that he would receive a split local sentence of three years, under section 1170, subdivision (h). He completed a three-page written plea form which advised him of his rights and the consequences of his plea. His attorney and the prosecutor signed the plea form. In open court, the trial judge took defendant's no contest plea and found that defendant had knowingly and voluntarily waived his rights. The parties stipulated to a factual basis for the plea. The court stated it was "adopting the findings on the plea form, making them an order of the court," and also signed the plea form. The following colloquy occurred after the plea was accepted with regard to the sentence:
The sentencing triad for a violation of section 496d is 16 months, two years, and three years. The effect of the enhancement for repeat offenders under section 666.5 is to increase the punishment to two, three, or four years. ("Every person who, having been previously convicted of . . . a felony violation of Section 496d regardless of whether or not the person actually served a prior prison term for [that] offense[], is subsequently convicted of any of these offenses [including section 496d] shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years . . . .") The plea form was inartfully completed. It showed count 1 as "496(d)" with a maximum penalty of three years, and on the next line "enhancement 666.5" with the maximum penalty four years. Further, the crime charged was section 496d (not "496(d)," which makes it a misdemeanor to attempt to buy or receive stolen property).
"THE COURT: . . . It looks like negotiated disposition of two years in state prison. I'm sorry, three years local prison."
"MR. McENTEE [Defense Counsel]: Yes.
"THE COURT: Local prison, pursuant to 1170(h). And it looks like he will be dealing with a split sentence.
"[DEFENSE COUNSEL]: That's correct."
The case was set for sentencing on September 9, 2016.
Sometime thereafter, defendant was informed that he was not eligible for a local sentence under section 1170, subdivision (h) because he was serving a six-year prison sentence for a case in Solano County. (The probation office reached the same conclusion in its presentence report.) Upon being told this information at the outset of the sentencing hearing on September 9, the trial court offered to let defendant withdraw his guilty plea, and asked defense counsel if he would like to have time to speak to defendant. Defense counsel stated that "we have discussed it. And I think we have an idea what we want to do. I would like a little time, so if we can pass it." The trial court agreed. Sometime later, proceedings resumed. The prosecutor informed the court that defendant was currently serving a six-year prison sentence from a conviction in Solano County Superior Court (VCR223127), which he had started serving June 21, 2016.
The trial court indicated that there was "nothing in the probation report about a case being served, or reference to a Solano case," but the court was incorrect. The information is reflected in the probation office's presentence report, date stamped received by the Napa County Superior Court on September 2, and filed on September 9, 2016, the day of sentencing. The trial court signed the last page of the report. The probation office report concluded that as a result of the Solano County prison sentence, defendant was not eligible for a section 1170, subdivision (h) sentence.
Defense counsel, referring to the further plea discussions that had occurred, stated that the prosecutor "gave Mr. Brown and me a choice again of four years concurrent term, or one-third the midterm consecutive term. The midterm is three years. One-third of that would be a year. Mr. Brown has decided to choose the four-year concurrent term" to the Solano case.
The prosecutor elaborated that defendant started his six-year sentence on June 21, 2016. "But he had a total of 941 time credits, so that's—but I think for the abstract and sentencing all we need is the case number from Solano County, and we can run our sentence concurrent with that. And that would be the aggravated term. Defendant, when he plead, was a 496(d). Actually, it's a 496(d)(a), with a 667.5 enhancement. I'm looking at an amended complaint filed August 11th, 2016. And the triad for that is two, three, four. [¶] So that would be the aggravated term of four years in state prison, concurrent with the Solano County case. He's entitled to zero time credits against that. He starts to earn it. He'll have one for today. He only gets time credit when he gets sentenced on this case. He wants to be sentenced today. He gets time credits starting today. [¶] And I brought a case, In re Rojas, that sets forth if you're serving a CDC sentence, you're not entitled to time credits on a new case, even if they run concurrent."
The court reporter transcribed the charge as section "496(d)," but as we have noted, count 1 is section 496d. Further the prosecutor appeared to misspeak: the enhancement is 666.5, not 667.5.
Defense counsel then spoke. "We'd like to proceed now. He's electing the four-year concurrent term, concurrent with the Solano case. That would be in this case. However, I have objected to—I understand what Mr. Gutierrez [the prosecutor] is saying. I read one of the cases he relies on. But I dispute his credit calculation. I adhere to the one probation provided us, updated, of course. [¶] I believe he's entitled to credits here in Napa. Very last page."
Defense counsel was apparently referring to the last page of the probation officer's report, which reflected 32 days custody credits for time spent in "NCDC" and 32 days credit under section 4019, for a total of 64 days. Presumably "NCDC" refers to a Napa County jail or detention center. The 32 custody days were for February 11, 2015 (1 day) and August 2 through September 1, 2016 (31 days). (As we have noted the presentence report appears to have been prepared about a week in advance of the September 9 sentencing.)
In the copy of the presentence report that is part of the record on appeal, the custody credits referred to by defense counsel have been crossed out, and the total time credits are for the 2 days that the court later imposed. Presumably these interlineations were made to conform with the trial judge's sentence.
The court then volunteered to postpone the matter to research the custody issue, to which the district attorney replied that he was willing to put the matter over as long as the court would like. But then he added, "Every time it is put over, the defendant doesn't earn credits against the sentence. He can file a motion to correct sentence if he has legal authority. I'm very confident that it is fruitless. I do see he is entitled from the date of arrest, which looks to be 2/11/15. And so I would stipulate to 2/11. One day. I would stipulate to one day credit for today, which I'm not sure he's entitled to. But I'm happy to stipulate to one day actual against his sentence. But whatever Mr. McEntee and his client would like to do."
The court again volunteered that it could sentence defendant that day, and "reserve the issue of time credits so he doesn't loose [sic] anything over the weekend." To which the prosecutor responded that defense could "file a motion and do whatever he needs to do to correct his credits. If he is correct, he can file a motion to have the Court do an amended abstract. There's no reason for the defendant to remain here." Defense counsel responded, "I agree with that. I would like to proceed. I would like the court to note my objection. If necessary, I'll file something. But I would like to proceed today."
With the custody credits issue thus framed, the trial court addressed defendant:
The Court: "So, Mr. Brown, when you entered your plea, you entered the plea with the understanding that you were going to be serving a split sentence. And now the understanding is that option is not available. And Mr. McEntee has discussed with you whether you want to withdraw your plea, or whether you would like to go forward with sentencing, with the understanding that if you do not withdraw your plea, you will be sentenced to four years, which will be concurrent to the time in Solano County. [¶] But it will require that you still serve more time, even though it is a six-year sentence, because of all the time credits. So you understand that you'll still need to serve more time above the six-year sentence from Solano County?" Defendant replied, "Yes."
The court then clarified the correction on the plea form itself and the maximum sentence stated on the form. "Also for the correction, on the plea form 496d(a), it had placed the maximum confinement time of three years, even though the amended complaint shows it's four years. So does that in any way change how you wish to proceed today?" Defendant responded, "No."
Defense counsel further clarified that the "charge listed on the Amended Complaint is correct, but the charge listed on the plea form is incorrect. It should be a PC 496d(a). What's listed there is an incorrect cha[r]ge on the plea form."
Defense counsel had indicated that there was no legal cause why the sentence could not proceed. The court asked defendant whether there was anything he would like to say before the trial court proceeded with the sentencing, and defendant said no.
The court then sentenced defendant, finding him guilty of count 1, "violation of Penal Code Section 496d(a), receiving stolen property, motor vehicle, slash PC 667.5, on or about February 11th, 2015." Defendant was sentenced to state prison for "a high term, four year negotiated and agreed upon disposition . . . but it is concurrent to the time in Solano County, VCR223127, which I understand is a six-year sentence imposed on June 21, 2016, with approximately 900 days of credits. [¶] So you are entitled to day-for-day credits in this case. And, further, you will have time credits today of two days. February 11th, 2015, and then today's date, September 9th, 2016. You don't get conduct credits until you get to four." The court imposed a restitution fine of $300 and a parole revocation restitution fine in the same amount, but stayed, a $40 court security fee, and a $30 criminal conviction assessment fee. Attorney fees and presentence report fees were waived. Defendant was advised that restitution must be paid to a named person, in an amount to be determined if any was owed, and informed defendant that if he disputed the amount he would be entitled to a restitution hearing. And finally, "if there should be a correction on the time credits, Mr. McEntee will keep you informed."
The court clearly misspoke, since the enhancement was section 666.5 (not 667.5), and the judge had referred to section 666.5 only a few lines earlier in the transcript. Moreover, the section 667.5 special allegations had been dismissed at the time defendant entered his change of plea on August 11, 2016, as reflected in the transcript and the minute order.
When the court ordered restitution to the victim, the judge stated "[t]hat's been added as number five," presumably referring to the presentence report prepared by the probation office, where an item 5 regarding restitution is handwritten. The trial judge signed the probation officer's report. --------
As far as we can tell, no subsequent motions were filed with the trial court to correct the award of presentence credit.
Defendant filed a timely notice of appeal, checking the box on the form that the appeal was "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." Defendant's attorney also checked a box marked "other" and typed in "credit calculations."
REVIEW
We have reviewed the entire record as required by People v. Wende, supra, 25 Cal.3d 436. Our independent review reveals no arguable legal issues within the meaning of People v. Wende that require further briefing.
Defendant was represented by competent counsel who protected his rights and interests. Defendant was advised of his constitutional rights and voluntarily waived them before entering his plea. Defendant was advised of the consequences of the plea. He was given the opportunity to withdraw his plea when it became apparent that he was not eligible for the split sentence under section 1170, subdivision (h), but chose not to do so and to proceed with a different sentence.
We see no error in the sentence or the calculation of custody credits, fine or fees. Defendant was not entitled to more than two days of custody credits in this case. "A defendant is not entitled to presentence custody credits when he or she is charged with a crime while already incarcerated and serving a sentence on a separate, earlier crime. (People v. Bruner[ (1995)] 9 Cal.4th [1178,] 1180; In re Joyner (1989) 48 Cal.3d 487, 489; In re Rojas (1979) 23 Cal.3d 152, 155.) The test is whether the defendant would have been free 'but for' his or her incarceration on the second crime." (People v. Gisbert (2012) 205 Cal.App.4th 277, 281.) Here the answer is no, since defendant was serving a state prison sentence from Solano County. Thus defendant has not shown that he was entitled to more than the two days credit for time served awarded in this case.
We have quoted at length from the change of plea and sentencing hearing transcripts, as well as describing the documents in the record, because the record is rife with misstated statute numbers. Despite these occasional misstatements, we are convinced on reading the entire record that there are no arguable issues on appeal and no error in the judgment.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.