Opinion
E079804
11-17-2023
THE PEOPLE, Plaintiff and Respondent, v. DONNIE LUCKY CANTRELL, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF1402281 John D. Molloy, Judge. Affirmed in part, remanded in part.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, Acting P. J.
I. INTRODUCTION
Defendant Donnie Lucky Cantrell appeals following a resentencing hearing pursuant to Penal Code section 1172.75. On appeal, he argues the trial court prejudicially erred in resentencing him without a supplemental probation report, and the court erred in failing to calculate his credits for the time he spent in custody until the date of resentencing. We reject defendant's first claim of error, but agree the court erred in failing to calculate defendant's custody credits and thus remand the matter for the trial court to calculate defendant's custody credits.
All future statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from this court's nonpublished opinion in defendant's direct prior appeal, case No. E064076. (People v. Cantrell (July 21, 2016, E064076) (Cantrell I).)
Defendant and his girlfriend, Catherine Wicker, threatened their neighbor who had cooperated with the investigation of a criminal case against Cantrell. Specifically, in September 2013, an investigator with the Riverside County District Attorney's Office contacted the victim, Sergio Rodriguez, who had used crutches his entire life after contracting polio as a child, about being a potential trial witness in a criminal case against Cantrell. Rodriguez and defendants were neighbors in San Jacinto but they were not friendly.
The investigator asked Rodriguez to call him if he saw Cantrell, who had been evading the investigator. A few minutes later, Rodriguez reported that Wicker and Cantrell were leaving in a blue van. When Wicker, who was the driver of the blue van, and defendant, who was the front passenger, saw the investigator driving towards them, Wicker swerved, accelerated, and fled.
In December 2013 and January 2014, the investigator monitored about 20 hours of defendant's jailhouse calls, mostly with Wicker, concerning Rodriguez being a witness. During the calls, Cantrell and Wicker referred to Rodriguez many times using the term "snitch," as well as other pejorative terms. The investigator counseled Rodriguez to call him or 911 if there were any problems when defendant moved back in with Wicker.
On June 5, 2014, the investigator called Rodriguez to check on him. At noon, Rodriguez was in his garage preparing lawn fertilizer. Wicker was driving her white car with defendant in the front passenger seat when she backed up and stopped in front of Rodriguez's driveway. Defendant rolled down the window and told Rodriguez to mind his own business and called him a "snitch ass n----." Wicker added, "F--- snitches." Defendant told Rodriguez that he would not wake up the next day if he continued to snitch. Wicker said, "That's on 30's, you won't wake up," which Rodriguez understood to be a gang reference.
Rodriguez felt vulnerable because he realized defendants were mad at him for speaking with the police and trying to prevent him from testifying. Rodriguez feared for his life and thought that he could possibly be shot, injured, or attacked. He warned defendants he would call the police if they did not leave. Eventually, defendants drove away, and Rodriguez thought the interaction was over.
After Rodriguez finished mixing fertilizer, he fertilized the grass with a spreader while using crutches. A few minutes later, Wicker's car reappeared and pulled into the driveway of Rodriguez's residence. Rodriguez was standing in the middle of his lawn, on crutches and holding the fertilizer spreader. Wicker and defendant left the car and approached within eight feet of Rodriguez. Defendant clenched a fist and took a fighting stance. Wicker and defendant directed more profanities at Rodriguez and warned he was going to get what was coming to him.
Rodriguez told Wicker to shut up. Although Rodriguez claimed he was going to call defendant's parole officer, he was bluffing because he did not have the parole officer's phone number. Defendant continued to yell and curse at Rodriguez. Wicker said that she was not on parole, and she could act however she wanted. Wicker repeated, "[i]t's on 30's," that Rodriguez "would not wake up," was "done," and that "snitches get what they get." Wicker also called Rodriguez a "faggot." Defendant repeated his earlier verbal attacks.
Rodriguez was afraid his life was in danger. It was difficult for him to maneuver with crutches on the grass, and he could not defend himself if defendants attacked him. After Rodriguez said he was going to call the police, defendants walked away. Another neighbor, who was working in her home office, overheard an argument between Rodriguez and two people who were occupants in Wicker's car. The neighbor did not identify defendants as the occupants.
Rodriguez called the investigator and they arranged to meet after Rodriguez purchased a video camera surveillance system. When the investigator spoke with Rodriguez, he was still fearful of defendant, whom he described as having facial and neck tattoos. Rodriguez later installed three more cameras for protection. The investigator later arrested Wicker.
Defendant did not testify in his own defense. Wicker testified and denied threatening or intimidating Rodriguez. Regarding the jail telephone calls monitored by the investigator, Wicker claimed her statements about being angry at the "mother fucker across the street" and cussing him out were about another person, the brother of a woman with whom defendant was having an affair.
B. Procedural Background
A jury found defendant guilty of criminal threats (§ 422; count 1); witness intimidation by using force or threatening to use force or violence (§ 136.1, subd. (c)(1); count 2); and threatening a witness or victim (§ 140, subd. (a); count 3) while released from custody on bail (§ 12022.1). In a bifurcated proceeding, defendant admitted that he had suffered a prior prison term (§ 667.5, subd. (b)), had a prior serious felony (§ 667, subd. (a)), and a prior strike conviction (§§ 459, 667, subs. (c) and (e)(1)).
In July 2015, the trial court sentenced defendant to 13 years in state prison as follows: six years (the middle term of three years doubled due to the prior strike) on count 2, plus five years for the prior serious felony, and two years for the on-bail allegation. The court ordered the middle term of two years on count 1 and the middle term of three years on count 3 be served concurrently and stayed the prior prison term. The trial court noted that defendant was statutorily ineligible for probation on count 2 because of the prior strike and denied probation on counts 1 and 3.
On July 21, 2016, this court affirmed defendant's conviction and sentence on direct appeal.
On August 22, 2022, the trial court resentenced defendant pursuant to section 1172.75. Prior to the resentencing hearing, the People filed a sentencing memorandum requesting the court impose the middle term based on defendant's criminal history, record of conviction, and the interests of justice. Defendant did not file a sentencing memorandum or request a supplemental probation report. At the resentencing hearing, defendant's counsel requested the court strike the prior convictions, the on-bail enhancement, and certain fees and fines. Defense counsel did not request an updated or supplemental brief or argue any postconviction factors to support a lower term or the striking of the enhancements. Following argument, the court struck the one prior prison term enhancement (which was previously stayed) and the previously imposed fines and fees. The court denied defendant's request to strike the five-year prior serious felony enhancement, the prior strike conviction, or the on-bail enhancement. The trial court resentenced defendant to a total term of 13 years (the middle term of three years doubled to six years due to the prior strike on count 2, plus five years for the prior serious felony and two years for the on-bail allegation). Defendant timely appealed.
III. DISCUSSION
A. Supplemental Probation Report
Defendant contends the trial court prejudicially erred in failing to order an updated probation report prior to the resentencing hearing because the court could not reasonably and knowledgeably exercise its discretion without current information about him. He further asserts a supplemental report was required by California Rules of Court, rule 4.411(a)(2), since a significant period of time had passed since the original report was prepared. He thus believes a remand is necessary. The People respond defendant forfeited the issue for failing to object in the court below. Alternatively, the People contend the court was not required to order a supplemental probation report because defendant was ineligible for probation and any error was harmless.
Effective June 2022, Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12.) Section 1172.75, subdivision (a), provides that "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid." Once the California
Department of Corrections and Rehabilitation identifies those persons "currently serving a term for a judgment that includes an enhancement described in subdivision (a)" to the sentencing court, "the court shall recall the sentence and resentence the defendant." (§ 1172.75, subds. (b) &(c).)
In resentencing a defendant pursuant to section 1172.75, "'[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.' [Citation.] 'The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.' [Citation.]" (People v. Monroe (2022) 85 Cal.App.5th 393, 399.) "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (Id. at p. 402 [reversing and remanding for resentencing where court thought it was without jurisdiction to strike firearm enhancements]; People v. Hubbard (2018) 27 Cal.App.5th 9, 12-13 [full resentencing includes jurisdiction to rule on motion to strike].)
"'"Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record."' [Citation.]" (People v. Fredrickson (2023) 90 Cal.App.5th 984, 988; accord People v. Lopez (2022) 78 Cal.App.5th 459, 466-467.)
California Rules of Court, rule 4.411(a), addresses presentence investigative reports and states: "When required[:] As provided in subdivision (b), the court must refer the case to the probation officer for: [¶] (1) A presentence investigation and report if the defendant: [¶] (A) Is statutorily eligible for probation or a term of imprisonment in county jail under [Penal Code] section 1170[, subdivision] (h); or [¶] (B) Is not eligible for probation but a report is needed to assist the court with other sentencing issues, including the determination of the proper amount of restitution fine; [¶] (2) A supplemental report if a significant period of time has passed since the original report was prepared." (Cal. Rules of Court, rule 4.411(a).) Rule 4.411(b) allows the parties to stipulate to the waiver of the report.
"[A] probation report is not necessarily required if defendant is statutorily ineligible for probation ...." (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) In such cases, the court has discretion to decide whether a probation report should be provided. (People v. Bullock (1994) 26 Cal.App.4th 985, 989.) "If a report is not required for such defendants upon original sentencing, we see no basis for holding that a report is required for resentencing after remand, assuming the defendant remains ineligible for probation.... [¶] This is not to say a probation report may not be helpful to a court on resentencing." (Ibid.) "There may be compelling reasons for ordering a probation report even when the defendant is ineligible for probation. The defendant's postconviction behavior and other possible developments remain relevant to the trial court's consideration upon resentencing. Still, in many cases obtaining a new report will be a meaningless exercise. The trial court is in the best position to evaluate the need for an updated report, with the input of counsel." (Id. at p. 990.)
"Where . . . a defendant is ineligible for probation, such omissions [in failing to request a supplemental report] result in waiver of a supplemental report in the trial court and forfeiture of the right to object to the absence of such a report on appeal. [Citations.] This is so even where, for instance, the issue before the sentencing court was whether to exercise discretion to dismiss" an enhancement or modify a sentence. (People v. Franco (2014) 232 Cal.App.4th 831, 834 (Franco).)
In People v. Begnaud (1991) 235 Cal.App.3d 1548, this court held that where a defendant fails to request a supplemental probation report, voices no objection to proceeding with resentencing without a supplemental probation report, and states there is no legal cause why judgment cannot be imposed, the issue of requiring a supplemental probation report is waived. (Id. at pp. 1555-1556.)
In People v. Johnson (1999) 70 Cal.App.4th 1429 (Johnson), we explained "a timely objection to the absence of a supplemental report would have permitted the court to explain why none was necessary." (Id. at p. 1433.) We further concluded, "'[a] defendant should not be allowed to stand silent when the court proceeds without a supplemental probation report, gamble that a trial court will impose a lesser term of imprisonment and then urge reversal for the failure to obtain the report without being required to make some showing that he was prejudiced thereby.'" (Ibid.)
In Franco, supra, 232 Cal.App.4th 831, the appellate court held that the failure, by a defendant who was not eligible for probation, to request a supplemental probation report or object to proceeding without one resulted in "waiver of a supplemental report in the trial court and forfeiture of the right to object to the absence of such a report on appeal." (Id. at p. 834.) By statute and by rule, the court must request a presentence investigation report only where the defendant is eligible for probation or "a report is needed to assist the court with other sentencing issues, including the determination of the proper amount of restitution fine." (Cal. Rules of Court, rule 4.411(a)(1)(B); § 1203, subds. (b) &(g).)
A supplemental report is necessary only in the circumstances in which a report is required in the first instance, i.e., when the defendant is eligible for probation or a report is necessary to assist the court with other sentencing issues such as the amount of a restitution fine. (Johnson, supra, 70 Cal.App.4th at pp. 1431-1432.) Since his prior strike conviction rendered defendant ineligible for probation (see People v. Superior Court (Roam) (1999) 69 Cal.App.4th 1220, 1229), the trial court was not required to obtain a supplemental report in this case. Certainly, the court had discretion to order a supplemental report, but defendant did not request that it do so.
Defendant asserts the cases applying the forfeiture rule were not decided in the context of resentencing under section 1172.75. Although that is true, defendant fails to explain why cases holding the failure to request a report or to object to the absence of one constitutes a waiver and forfeiture of any error should not apply in the context of a resentencing proceeding under section 1172.75. Defendant also argues the trial court was required to order a supplemental probation report prior to the August 2022 resentencing hearing because, by that time, nearly seven years, i.e., a significant amount of time, had elapsed since the initial probation report had been prepared. (Cal. Rules of Court, rule 4.411(a)(2).)
However, because defendant's prior strike conviction rendered him ineligible for probation (§ 667, subd. (c)(2) [prior "strike" conviction renders a defendant ineligible for probation]), the trial court did not commit any error under the line of authority applicable to defendant. First, defendant did not request a supplemental probation report and the failure to do so is fatal when preparation of the report is discretionary. (Franco, supra, 232 Cal.App.4th at p. 834; People v. Myers (1999) 69 Cal.App.4th 305, 311; cf. Dobbins, supra, 127 Cal.App.4th at p. 181 [when preparation of supplemental report is mandatory, absence of report cannot be forfeited].) Second, defendant has not otherwise demonstrated that the trial court abused its discretion in not ordering a supplemental probation report. (See People v. Llamas (1998) 67 Cal.App.4th 35, 40.) That is because defendant points to nothing to indicate that "a current report would have provided the court with any essentially useful information for purposes of resentencing." (People v. McClure (1987) 191 Cal.App.3d 1303, 1306.) The court did not abuse its discretion in failing to order a supplemental probation report prior to the August 2022 resentencing hearing.
B. Custody Credits
Defendant further argues the trial court erred in failing to calculate and award him custody credits through the date of his resentencing. He thus requests that we remand the matter and instruct the trial court to calculate his custody credits and amend the abstract of judgment to include his additional days in actual custody. The People agree the court should have awarded defendant credit for all time he served in custody prior to his resentencing and that the matter should be remanded to allow the trial court to calculate defendant's custody credits. We also agree.
Section 2900.5 provides for the application of custody credit to a defendant's term of imprisonment: "In all felony . . . convictions, . . . when the defendant has been in custody, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment...." (§ 2900.5, subd. (a).) And the California Supreme Court has held, "When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.'" (People v. Buckhalter (2001) 26 Cal.4th 20, 23, italics omitted.) Hence, when a defendant is resentenced, all the actual time spent in custody, whether in jail or in prison, should be credited against the modified sentence, and such credit should be reflected in the amended abstract of judgment. (Id. at pp. 37, 41; People v. Sek (2022) 74 Cal.App.5th 657, 673.)
Here, there is no indication in the record that the trial court calculated defendant's custody credits when it resentenced defendant on August 22, 2022. Defendant was originally sentenced on July 9, 2015, and he received credit for 163 actual days and 162 conduct days. The September 2022 abstract of judgment reflects a total of 325 days of custody credits, which is the same amount defendant received at his original sentencing in 2015. When defendant was resentenced on August 22, 2022, the court should have calculated and awarded defendant credit for the actual days he spent in custody between July 9, 2015, and August 22, 2022. Defendant calculates this number as "2,601 days (175 for 2015, 366 for 2016, 365 each for 2017, 2018 and 2019, 366 for 2020, 365 for 2021 and 234 for 2022[])." The People do not expressly agree or disagree with defendant's calculation, but rather argue a remand is proper for the trial court to calculate the applicable custody credit as of the date of resentencing.
In light of the lack of affirmative evidence verifying defendant's custody status from the time of his arrest until the date of the resentencing hearing, we conclude a remand is appropriate for the trial court to verify the dates defendant was in custody. (See In re Antwon R. (2001) 87 Cal.App.4th 348, 353 [remand appropriate for trial court to calculate custody credit where record does not provide enough information to calculate credit on appeal].) Accordingly, we remand the matter for the trial court to recalculate the correct amount of custody credit and to issue an updated abstract of judgment reflecting the change.
IV. DISPOSITION
The matter is remanded for a recalculation of defendant's custody credit as of the date of the resentencing hearing and the preparation of an amended abstract of judgment reflecting such credit. In addition, the trial court is directed to forward the new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: FIELDS J., RAPHAEL J.