Opinion
E052649 Super.Ct.No. FSB904723
12-02-2011
THE PEOPLE, Plaintiff and Respondent, v. NORRIS EDWARD COLE, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Norris Edward Cole guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a); count 1) and possession of marijuana (Health & Saf. Code, § 11377, subd. (b); count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior serious and violent felony conviction (Pen. Code, §§ 667, subd. (b)(1), 1170.12, subds. (a)-(d)) and five prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total term of 11 years in state prison with credit of 314 days for time served.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends: (1) the trial court erred in imposing the upper term on count 1; (2) the trial court erred in calculating his presentence custody credits; and (3) the trial court erred in imposing a booking fee without first determining his ability to pay. We agree with the parties that defendant is entitled to 64 days of additional presentence custody credits but reject defendant's remaining contentions.
I
FACTUAL BACKGROUND
On November 1, 2009, two San Bernardino police officers were on routine patrol in their police vehicle when they heard a commotion outside a business. As the officers approached, defendant walked away. Defendant then headed to a vehicle parked in the area, reached into his pocket, pulled out an item, and dropped it near the rear of the vehicle. The officers recovered the item, which was a large plastic bag containing about 5.49 grams of marijuana; the large plastic bag also contained smaller plastic bags with five individually wrapped pieces of cocaine base. Also found was $124 in defendant's front pant pocket.
II
DISCUSSION
A. Imposition of Upper Term
Defendant contends the trial court abused its discretion by imposing the upper term on count 1 (possession of cocaine base). Specifically, he claims the court improperly engaged in dual use of facts when it relied on his prior poor performance on probation and parole and his prior convictions. He further asserts that the court failed to take into account his drug addiction and the minor nature of the present offense as mitigating circumstances. The People respond defendant waived this issue by failing to raise it below and, in the alternative, that it is without merit.
We decline to find that defendant waived this issue.
1. Additional background
The probation report reflects that defendant was 45 years old at the time of sentencing. He had suffered 19 convictions over a 24-year period, albeit a number of those convictions were misdemeanors related to his drug addiction. Since 1982, defendant had sustained numerous convictions for possession of a controlled substance and being under the influence of a controlled substance. He also had several convictions for entering a noncommercial dwelling, petty theft, petty theft with priors, burglary, possession of a drug paraphernalia, and receiving stolen property. In addition, he had been convicted of carrying a concealed weapon and assault with great bodily injury. Moreover, defendant was on parole when he committed the instant offense, and his prior performance on probation and parole has been unsatisfactory.
At sentencing, the trial court in denying defendant a grant of probation stated: "In reviewing the circumstances of this case and his prior record, when I look at the criteria affecting probation under [California Rules of Court] Rule 4.414, it's clear that the defendant's prior performance on probation and parole has been unsatisfactory. He was on parole at the time this offense was committed. I think it's very clear from his own statement in the probation report that he has not accepted responsibility for this offense. He has shown no remorse. [¶] His prior convictions are numerous, and the Court finds it cannot find unusual circumstances to get around the prohibition from probation under [section] 1203(E)(4) so probation is denied."
In imposing the upper term on count 1, the court stated: "The Court has selected the aggravated terms based upon the defendant's prior conviction and prior performance on both probation and parole." The court sentenced defendant to the upper term of three years on count 1, doubled to six years due to the prior strike conviction, plus consecutive one-year terms for each of the five prior prison term allegations.
2. Analysis
We conclude there was no abuse of discretion in imposing the upper term for count 1, possession of cocaine base. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A single aggravating factor may justify the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors and, in fact, may disregard any mitigating factor. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582, 1583.) Here, the court considered the totality of the circumstances, particularly defendant's long history of criminal conduct, numerous convictions, and poor performance on probation and parole. The court also noted defendant's status of being on parole when the instant offenses were committed.
As such, we reject defendant's claim that the trial court failed to consider his drug addiction and minor nature of his current offenses as factors in mitigation. We also find this contention unpersuasive because the record shows that the court was aware of these factors in mitigation but rejected them.
The trial court's remarks at sentencing make clear that it did not base its decision solely upon defendant's prior convictions. Rather, the court also relied heavily on defendant's repeated violations of parole and probation. Poor performance on parole is a valid aggravating factor on which the trial court could rely in imposing the upper term (Cal. Rules of Court, rule 4.421(b)(5)) and is a factor distinct from the fact of prior convictions. (People v. Yim (2007) 152 Cal.App.4th 366, 369 [parole status and parole performance are distinct aggravating factors].)
Because the factor of repeated parole and probation violations independently supported the trial court's sentencing decision to impose the upper term, we conclude that decision was not based on an impermissible dual use of facts. Moreover, defendant's long and repetitive criminal history justifies the upper term. (People v. Black (2007) 41 Cal.4th 799, 816.) Likewise, defendant's status of being on parole when he committed the present offenses justifies the upper term. California Rules of Court, rule 4.421(b)(4), expressly permits the sentencing court to consider as an aggravating factor that "[t]he defendant was on probation or parole when the crime was committed." The fact of defendant's poor performance was established "„by reference to "court records" pertaining to [his] prior convictions, sentences and paroles. The mere recitation of his dates of conviction and releases on parole [citation] demonstrate[s], as a matter of law, that he committed new offenses while on parole.' [Citation.]" (People v. Towne (2008) 44 Cal.4th 63, 82.)
The totality of the record supports the trial court's proper exercise of discretion in sentencing defendant.
B. Custody Credits
Defendant contends, and the People correctly concede, that the trial court erred in calculating his presentence custody credits. We agree that defendant is entitled to additional 64 days of presentence custody credits.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (id., subd. (c)). "'Conduct credit' collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]" (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Defendant was in jail from the date of his arrest on November 1, 2009, to the sentencing date of December 16, 2010. Hence, defendant served a total of 411 actual days in local custody, and he is entitled to 204 days of conduct credits (411 divided by four, and then multiplied by two). He is thus entitled to 615 days of presentence custody credits, rather than 551 as awarded by the trial court.
We note some errors and inconsistencies in the record concerning the custody credits. The trial court indicated presentence custody credits at 414 days, while the abstract of judgment indicates 314 days. Our calculations show that defendant served 411 actual presentence custody days. Since we are modifying the judgment in any event, we will order the court to prepare an amended abstract of judgment and minute order reflecting the proper totals.
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C. Imposition of Booking Fee
At the December 16, 2010, sentencing hearing, the trial court imposed a booking fee payable to the City of San Bernardino in the amount of $79.86, to be paid within one year of his release date from custody. Although no such finding was made by the trial court at the time of oral pronouncement, the court's minute order of the December 16, 2010, sentencing hearing states: "Court finds Defendant is able to pay Booking Fees in the amount of $79.86 to the City of San Bernardino."
The probation report recommended that defendant be ordered to "reimburse the City of San Bernardino [address omitted] pursuant to Government Code section 29550.1, in the amount of $79.86 and show proof of payment to the parole agent."
Defendant contends that imposition of the booking fee was improper because there was insufficient evidence of his ability to pay the fee, and therefore it should be stricken. The People respond that imposition of the booking fee did not require a determination of defendant's ability to pay. To this argument, defendant replies that there was no evidence to show the amount of the fee imposed actually reflected the costs incurred by the City of San Bernardino.
Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise processing arrested persons into a county jail. Government Code section 29550, subdivision (a)(1), provides that "a county may impose a fee upon a city . . . for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city . . . where the arrested persons are brought to the county jail for booking or detention." (Italics added.) Government Code section 29550.1 states that "[a]ny city. . . whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person." (Italics added.) Government Code section 29550.2, subdivision (a), provides that "[a]ny person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person." (Italics added.)
In this case, the probation report reflects that defendant was arrested by San Bernardino police and then apparently taken to the county jail. The trial court subsequently ordered defendant to pay the booking fee to the City of San Bernardino. The probation report indicates that the fee was being imposed "pursuant to Government Code section 29550.1."
We note that Government Code section 29550.2 only applies to the extent a person was arrested by a governmental agency not specified in Government Code section 29550 or 29550.1, and it makes the fee payable to the county. Government Code section 29550.1 applies to individuals arrested by a city and concerns fees payable to the city. In view of the fact that police officers from San Bernardino arrested defendant and defendant was ordered to pay the booking fee to the City of San Bernardino, it appears that, as noted by the probation officer, Government Code section 29550.1 applies to this case, rather than Government Code section 29550.2, as defendant seems to suggest.
Further, whereas Government Code section 29550.2 contains language concerning a defendant's "ability to pay" and concerning the fee not exceeding the "actual administrative costs" incurred by a county in booking a person (Gov. Code, § 29550.2, subd. (a)), Government Code section 29550.1 does not. Under Government Code section 29550.1, the booking fee ordered by the trial court and payable to the city appears to be mandatory. The express language of the statute and its legislative history make clear that the fee imposed under Government Code section 29550.1 is mandatory.
In view of the plain language of the statute, under Government Code section 29550.1, the trial court did not have to determine defendant's ability to pay prior to imposing the fee.
III
DISPOSITION
The judgment is modified to award defendant an additional 64 days of presentence custody credits, for a total of 615 days (411 actual days of custody and 204 conduct credits) of presentence credit. The trial court is directed to amend the minute order of December 16, 2010, and the abstract of judgment to reflect 615 days of presentence credit and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.