Opinion
F074192
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. DARRELL CARTER, JR., Defendant and Appellant.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and Darren K. Indermill, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11902581)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge. Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and Darren K. Indermill, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J., and Smith, J.
-ooOoo-
Appellant Darrell Carter, Jr., pled no contest to infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). After several violations of probation, the court sentenced Carter to a three-year prison term.
All statutory references are to the Penal Code.
On February 21, 2017, appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking this court to independently review the record. An ensuing review of the record disclosed that the trial court may have erred in its award of presentence custody credit. On October 23, 2017, this court issued a letter to the parties allowing them to file a letter brief addressing this issue. Having considered the parties' briefs, we conclude the court erred in its award of presentence custody credit, modify the judgment accordingly, and affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2011, while the confidential victim (CV) was in the bathroom of the house where she and Carter lived, Carter kicked in the door, grabbed her hair braids and jerked her off the toilet. He then threw her to the floor and as she got up, Carter punched at her, grazing her right eye. After again grabbing the CV by her braids and causing her to fall down, Carter picked her up and started pushing her out of the house. As the CV attempted to leave, Carter slammed her face approximately four times into the screen door. Eventually, the CV was able to get out and run to a neighbor's house where she called police.
On May 17, 2011, Carter entered his plea in this matter.
On June 15, 2011, the court suspended the imposition of sentence and placed Carter on probation for three years on the condition that he serve 77 days in local custody.
On December 6, 2011, after Carter admitted allegations that he violated his probation, the court reinstated his probation and ordered him to serve 92 days in local custody with credit for 62 days served. The court also referred Carter to the Adult Offender Work Program and ordered him to attend three Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings per week.
On March 27, 2012, Carter admitted violating his probation by testing positive for marijuana on one occasion and failing to drug test on the other. The court ordered him to serve 195 days in local custody.
On June 5, 2013, after admitting that he violated his probation by testing positive for methamphetamine, Carter waived 228 days of credit for local purposes. The court then sentenced him to the middle term of three years on his domestic violence conviction, stayed execution of sentence, and ordered him to serve a year in jail. However, on July 12, 2013, he was released to an inpatient drug rehabilitation program.
On October 30, 2013, Carter failed to appear at a court hearing and the court revoked his probation and issued a warrant for his arrest. Additionally, the probation department issued a probation hearing report that alleged Carter violated his probation by being terminated from the Substance Abuse Treatment Program (SATP) and by being out of contact with the department since August 28, 2013.
On July 29, 2016, Carter was arrested on the outstanding warrant.
On August 2, 2016, the probation department filed a probation hearing report that alleged Carter violated his probation by being terminated from the SATP, being out of contact with his probation officer since August 28, 2013, and failing to appear in court on October 30, 2013. Also on that date, the court found Carter violated his probation as alleged in the hearing report. The court then lifted the stay of execution on the three-year prison term it had previously imposed and remanded Carter into custody to begin serving that term. The court also awarded Carter 335 days of presentence custody credit consisting of 194 days of presentence actual custody credit, 96 days of presentence conduct credit, and 45 days of treatment credit.
DISCUSSION
Carter's Contentions
Carter's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document this court received on March 8, 2017, Carter asks this court to consider that (1) he suffered from several mental disorders, (2) the judge who presided over his case was not "appointed" to deal with the mentally disabled, and (3) the courtroom he was placed in was not suitable for a person with his disabilities. Allegedly, this resulted in Carter not understanding what was going on. Carter also contends he was arrested after his car was illegally searched. Carter's claims are not cognizable on appeal because they rely on facts outside the appellate record. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 ["An appellate court's review is limited to consideration of the matters contained in the appellate record."].)
Carter's Award of Presentence Custody Credit
In our letter to the parties, we allowed them to brief whether the court erred in its award of presentence custody credit because Carter was entitled to one-for-one presentence custody credit pursuant to the version of section 2933 in effect when Carter committed the underlying domestic violence offense. In a letter brief filed on November 6, 2017, respondent concedes the court erred in its award of presentence custody credit as noted above. In a letter brief filed on November 7, 2017, Carter's appellate counsel agrees the court erred. Counsel also suggests that Carter has been released on parole and requests that the additional days of presentence custody credit be credited against his parole term. We agree Carter is entitled to additional presentence custody credit and will order that, if Carter has been released on parole, the additional days of custody credit should be credited against his parole term.
On August 2, 2016, when the court sentenced Carter to prison, section 4019 provided:
"The changes to this section enacted by the act that added this subdivision shall apply prospectively ... for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. (h).)
"Stats.2011, c. 15 (A.B.109), eff. April 4, 2011, operative Oct. 1, 2011." --------
In 2011, when appellant committed the underlying domestic violence offense, section 4019 allowed defendants to earn two days of conduct credit for every two days of actual custody. (Stats. 2010, ch. 426, § 2.) However, section 2933, subdivision (e)(1), provided:
"Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner." (Stats. 2010, ch. 426, § 1, italics added.)
In effect, former subdivision (e)(1) of section 2933 granted the benefit of one-for-one conduct credit to defendants who ultimately were sentenced to state prison. Since Carter committed his domestic violence offense on May 11, 2011, and he was sentenced to prison, the court erred by its failure to award him one-for-one conduct credit pursuant to the version of section 2933 in effect when he committed this offense. Therefore, based on Carter's 194 days of presentence actual custody credit, Carter was entitled to 194 days of presentence conduct credit, i.e., an additional 98 days of such credit, for a total of 433 days of presentence custody credit (194 days + 194 days + 45 days = 433 days).
Further, section 2900.5 provides that all days of custody, including any time spent in a jail or a rehabilitation facility, shall be credited against a defendant's term of imprisonment, which includes any period of parole prior to discharge. (§ 2900.5, subds. (a) & (c).) In In re Ballard (1981) 115 Cal.App.3d 647, the court held that when the denial of conduct credits to which a defendant is entitled to delay the defendant's prison release, "fundamental fairness" required that the credit must be used to adjust the defendant's parole release date. (Id. at p. 650.) Therefore, if Carter has been released from prison and is serving a period of parole, the additional 98 days of presentence custody credit should be deducted from his parole period.
Further, with the exception of the credit issue discussed above, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is modified to award Carter an additional 98 days of presentence conduct credit and his award of presentence custody credit is increased from 335 days to 433 days as calculated above. The trial court is directed to issue an amended abstract of judgment that incorporates this modification and to forward a certified copy to the proper authorities. Additionally, if Carter has been released from prison, the additional 98 days of presentence conduct credit shall be deducted from his parole period. As modified, the judgment is affirmed.