Opinion
A155524
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. MARCUS A. BUSER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. SCR66857; SCR717936)
I. INTRODUCTION
Defendant Marcus Aurelius Buser pleaded no contest to two vehicular thefts. The court imposed an eight-year sentence—three years for the theft crimes in addition to a previously imposed five-year split sentence, the mandatory supervision portion of which Buser was then serving. In calculating the total time Buser had already served on his split sentence, the trial court awarded Buser 1,572 presentence credits. Buser argues the court awarded him fewer credits than he had earned and violated his right to due process by imposing a sentence greater than that promised in his plea agreement. We disagree. We agree, however, with Buser's contention that one year of his sentence should be stricken pursuant to the passage of Senate Bill No. 136 which becomes effective January 1, 2020.
Defendant's petition for rehearing is granted, and this opinion follows.
II. BACKGROUND
On July 13, 2018, the Sonoma County District Attorney charged Buser with two counts of driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) and two counts of receiving stolen property (Pen. Code, § 496, subd. (a)). Of relevance here, in 2015, Buser had pleaded guilty to charges of auto theft and receiving stolen property. For the 2015 charges, Buser received a five-year split sentence, whereby 18 months would be served in custody and 42 months would be served on mandatory supervision. By the time the District Attorney charged Buser in 2018, he had been released from custody and was serving the mandatory supervision portion of the 2015 sentence.
A. Plea Agreement
In resolving the 2018 charges, the District Attorney offered Buser an "additional three years" on top of the time remaining on Buser's 2015 sentence. The three years would be served in custody consecutive to the time remaining on the prior sentence. Buser agreed to the deal and pleaded no contest.
B. Buser's Sentence and Credit Award
On September 26, 2018, the trial court imposed an eight-year aggregate sentence. Five of those years were from Buser's 2015 sentence, while the other three years were the additional years to which the prosecutor and Buser had agreed.
In imposing the eight-year aggregate sentence, the trial court calculated the number of credits Buser had earned from the 2015 sentence. The court asked the probation officer "as far as credits in [the 2015 case], do we have an updated credit calculation?" The probation officer stated that "[h]e was sentenced to 1,260 days. He has served 1,108 days. He has 152 remaining on that case." After adding an additional four days of credit for reasons that are not pertinent here, the trial court found that Buser had served 1,112 days. The court stated "[i]t's 322 actual [days]. 322 conduct [days]. 468 community days. Total 1,112 days. That will give you four more days than before."
On January 30, 2019, while this case was on appeal, Buser submitted a letter to the trial court requesting a revision to the credit award. Buser argued that the award of 1,112 credits erroneously "excluded the pre-sentence credits [he] received in [the 2015 case] at the time of his January 22, 2016 sentencing and the time he spent in custody between that sentencing and his March 29, 2016 release." He argued that the credit award should have included credits he received for presentence custody, actual custody, and good conduct relating to his 2015 sentence. Buser claimed that the judge had only awarded credits related to the mandatory supervision portion of the 2015 sentence. This assertion was based on the judge's reliance on the probation officer's statement that Buser had been sentenced to 1,260 days.
In stating that Buser was sentenced to 1,260 days, the probation officer appears to have calculated only the days attributable to the mandatory supervision portion of the split sentence. (42 months x 30 days per month = 1,260 days.)
In his letter, Buser requested an additional 458 days of credit—325 days of pre-sentence credits he had received at his 2015 sentencing, 67 more credits for actual time between January 22, 2016 to March 29, 2016, and 66 corresponding conduct credits. On February 5, 2019, the trial court amended the credit award in response to Buser's letter and added an additional 460 credits, for a total of 1,572 days of presentence credits on the 2015 sentence.
The trial court awarded an additional two credits on top of the amount requested by Buser.
III. DISCUSSION
Buser claims that the trial court erred when it awarded him only 1,572 credits. He argues the court should have awarded him an additional 105 credits, for a total of 1,677 credits. Buser claims that he is entitled to credit for the full 18 months of the custodial portion of his 2015 sentence even though he in fact served less than the 18 months imposed. He further argues that awarding him only 1,572 credits violated his due process rights because it imposed a sentence greater than that promised in the plea agreement. We disagree.
A. Standard of Review
When reviewing an appeal of a sentence, we examine the record for abuse of discretion and presume that the trial court properly exercised its discretion to achieve legitimate sentencing objectives, unless the party attacking the sentence can clearly show that the decision was irrational or arbitrary. (People v. Giminez (1975) 14 Cal.3d 68, 72.) The appellate court will not disturb a sentence in the absence of such a showing.
B. Analysis
Buser's claim that he should have been awarded an additional 105 credits is without merit. Buser derives his claimed total of 1,677 credits by subtracting 148 days from 1,825 days, which is the total number of days in his five-year split sentence (365 days per year x 5 years = 1,825 days). He derives this number from the probation officer's statement that Buser had "152 days remaining" on the 2015 case and the trial court's award of an additional four credits, thereby reducing the number of days remaining to 148. But Buser's methodology is incorrect. He erroneously subtracts the number of days remaining on the mandatory supervision portion of his sentence from the total number of days to which he was sentenced. Undergirding this calculation is the assumption that Buser must have served a full 18-month custody sentence, which he did not. Thus, merely subtracting the number of days remaining on the mandatory supervision portion of the sentence from the total sentence overstates the credits to which Buser is entitled.
Buser's 18-month custodial sentence was imposed on January 22, 2016. At the time of sentencing, he received 325 days of credit. He thus had approximately 215 days remaining (540 days - 325 days = 215 days). But he was released on March 29, 2016, which was only 67 additional days in custody.
Buser's January 30, 2019 letter to Judge LaForge clearly confirms that the 148 days only relates to days remaining on the mandatory supervision portion of his 2015 sentence. The letter includes a "CTS [credits] calculation" which states that on March 30, 2016, the day Buser's mandatory supervision commenced, Buser had 1,260 days of mandatory supervision to serve. The "CTS [credits] calculation" also states that, at the time of Buser's 2018 sentencing hearing, Buser had served 1,108 days of his mandatory supervision sentence. Finally, the "CTS [credits] calculation" reads "1,260 - 1,108 = 152 days left." This amount was later revised to 148 days by the trial court. Although this number reflects the remaining number of days Buser was required to serve to complete the mandatory supervision portion of his first sentence, it does not reflect the total number of credits actually accrued.
Buser claims that he should receive full credit for the full 18 months of the custody portion of his 2015 sentence. This is incorrect. Buser may not receive credit for the full 18 months of his custody sentence because he was released early, and defendants receive credit only for the time actually served. Penal Code section 2900.5, subdivision (a) states that "all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, and days served in home detention pursuant to Section 1203.016 or 1203.018, shall be credited upon his or her term of imprisonment." Defendants are thus eligible to receive credits only for days in custody or in home detention. (Ibid.) Once Buser had been released from custody, he was no longer eligible to receive credits under section 2900.5, subdivision (a). His argument that he should "be granted credit for time which he did not serve on the original county jail sentence due to early release [is] entirely without merit." (People v. Washington (1978) 80 Cal.App.3d 568, 573.) Buser cites no authority supporting his position that defendants who receive early release must receive credit for that time. (Cf. People v. Daniels (2003) 106 Cal.App.4th 736, 739 ["Daniels received no credit for the 22 days 'awarded' under the sheriff's early release program."].)
All further statutory references are to the Penal Code unless otherwise specified. --------
Allowing Buser to claim credit for time not served on the custodial sentence would, in effect, allow him to claim double credits for that portion of his sentence. A defendant serving a split sentence pursuant to section 1170, subdivision (h)(5)(B) begins the mandatory supervision sentence immediately upon release from custody. According to section 1170, subdivision (h)(5)(B), "the portion of a defendant's sentenced term that is suspended . . . shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody." Buser was released from custody on March 29, 2016, and his mandatory supervision sentence began immediately afterwards on March 30, 2016. Beginning on March 30, 2016, Buser began accruing credits related to his mandatory supervision sentence, not his custodial sentence. He did not and could not simultaneously accrue credits for both custody and mandatory supervision. Accruing credits in such a manner would award Buser more credits than he had in fact earned.
Buser argues that he and the People agreed that, for purposes of calculating the custodial term already served, Buser had completed his full 18-month custody sentence. Yet the transcript of the sentencing hearing reveals no such agreement. Neither Buser nor the People ever raised the issue of custody credits and Buser's early release. Moreover, the People's plea offer did not address the number of credits to be awarded to Buser. Absent such an agreement, Buser may not claim credit for a portion of his custodial sentence that he did not serve.
Even if we were to find that the parties had stipulated to Buser's completion of the full 18-month custodial term, Buser may still not receive credits for days not served. Courts do not have the authority to award credits unauthorized by law, as an agreement that "purports to authorize the court to exercise a power it does not have is unlawful and may not be enforced." (In re Williams (2000) 83 Cal.App.4th 936, 944.) The law prohibits Buser from receiving presentence credits for time he had not served due to his early release. (§ 2900.5, subd. (a); see People v. Washington, supra, 80 Cal.App.3d at p. 573.) Accordingly, such an agreement between the parties, whether explicit or implicit, could not be authorized by the trial court.
Finally, we briefly turn to Buser's due process argument. Due process protections apply to the "implementation of the [plea] bargain" (People v. Mancheno (1982) 32 Cal.3d 855, 860), but no due process violation occurs if a disputed element "was not a part of the plea agreement" (In re Moser (1993) 6 Cal.4th 342, 356). Of course, if a defendant "reasonably could have understood [the element]" to be a part of the plea negotiations, then due process protections may trigger. (Id. at p. 356.) However, because there was no error in the calculation of credits and no promise to award Buser more credits than he had in fact earned, there was no violation of due process. For the same reasons, we need not address Buser's other contentions regarding his alleged entitlement to specific performance of the plea agreement.
C. Senate Bill No. 136
In a petition for rehearing filed after we issued our initial opinion, Buser contends that two years of his 2015 sentence and one year of his 2018 sentence must be stricken in light of the October 8, 2019 passage of Senate Bill No. 136. Senate Bill No. 136, which becomes effective January 1, 2020, amends section 667.5, subdivision (b) to make one-year enhancements pursuant to that statute applicable only to prior prison terms "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Sen. Bill No. 136 (2019-2020 Reg. Sess.).)
We agree with Buser that Senate Bill No. 136 is retroactive to non-final judgments under In re Estrada (1965) 63 Cal.2d 740, 742 (Estrada), and that his prior prison terms were not for sexually violent offenses. As his 2018 vehicular theft convictions are not yet final, he will be entitled to relief pursuant to Senate Bill No. 136 on its effective date of January 1, 2020.
We reach a different conclusion with respect to the two one-year enhancements on Buser's 2015 split sentence. That judgment became final for purposes of Estrada when Buser failed to appeal it years ago. (People v. Grzymski (2018) 28 Cal.App.5th 799, 802, 805-806.) That his mandatory supervision was revoked and he was ordered to serve the balance of that split sentence in custody—due to his commission of new criminal conduct in 2018—does not change the result.
IV. DISPOSITION
We shall strike only the one-year enhancement imposed in the 2018 case (SCR-717936) pursuant to section 667.5, subdivision (b), effective January 1, 2020. After January 1, 2020, the trial court shall prepare an amended abstract of judgment reflecting this modification and shall forward the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.