Opinion
A121925
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. RICHARD STEPHEN DADAY, Defendant and Appellant.
Not to be Published
Defendant appeals from a judgment following his plea of no contest and imposition of sentence. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Defendant has been advised by counsel that he could file a supplemental brief raising any issues he wishes to call to this courts attention. We have received from defendant a document dated September 14, 2008. We have reviewed the matters raised in this document. Upon independent review of the record, we conclude that an ambiguity exists in the record regarding the plea and the matter must be remanded to the superior court to clarify the plea. However, we find no other errors that would result in reversal or modification of the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from a no contest plea following a waiver of preliminary examination, we need only concisely recite the facts from the probation report that are pertinent to the underlying conviction as necessary to our limited review on appeal.
On the evening of October 28, 2007, Vallejo police responded to a call from the victim, J.C. When they arrived at the victims residence, they found the victim with a gun in his hand. He reported that he had a restraining order against the defendant who was hiding in the downstairs bathroom. According to J.C. he awoke to find the defendant standing in front of him. Defendant jumped on top of him and a struggle ensued. Defendant stated that "he was going to kill him and he tried to suffocate him." Defendant then allowed him to get back into a chair, but for a half hour put a gun to his head threatening to kill him. J.C. was able to get the gun and fired it into the floor when the defendant moved toward him. Defendant was found hiding in the bathroom and was "tazed" since he would not comply with the commands of the officers.
On October 6, 2007, M.P. awoke and found defendant who was a former neighbor, in her residence. She had not seen the defendant for eight months to a year. He had previously contacted M.P. to ascertain the whereabouts of his ex-wife. M.P. escorted defendant from her residence. The next morning M.P. found that her purse was missing.
A felony complaint was filed on October 30, 2007, charging defendant with the following: stalking (Pen. Code, § 646.9, subd. (a)), count 1; first degree burglary (Pen. Code, § 459), count 2; making criminal threats (Pen. Code, § 422), count 3; and assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 4. The complaint also alleged an enhancement pursuant to Penal Code section 12022.5 in connection with count 4.
All further statutory references will be to the Penal Code unless otherwise indicated.
On November 13, 2007, criminal proceedings were suspended pursuant to section 1368 and two doctors were appointed. On December 13, a third doctor was appointed due to conflicting reports from the initial two doctors. After receipt of the third report, criminal proceedings were reinstated on January 17, 2008. On January 31, 2008, an amended complaint was filed that added a count 5, burglary (Pen. Code § 459) for the incident that occurred on October 6, 2007. Defendant then waived a preliminary examination. On February 6, 2008, an information was filed that essentially mirrored the allegations of the amended complaint. Defendant entered pleas of not guilty to all counts and denied the enhancements.
A motion to sever counts 1 through 4 from count 5 was filed on March 5, 2008. The motion was denied on April 3, 2008.
Pursuant to a negotiated disposition, defendant entered a plea of no contest to count 2 and all of the remaining counts and allegations were dismissed with a Harvey waiver. On May 16, 2008, defendant was sentenced to state prison for the midterm of four years and ordered to pay various fines. He was given a total of 301 days of credit consisting of 201 actual days in custody and 140 days of conduct credits. The court did not make a restitution order but "RESERVE[D] RIGHT TO RESTITUTION." This timely appeal followed.
People v. Harvey (1979) 25 Cal.3d 754, 758.
Defendant also entered a plea to misdemeanor, violation of Vehicle Code section 23152, subdivision (b) and another unrelated case, number 189753, was dismissed.
DISCUSSION
Section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) There are two exceptions to this rule that our Supreme Court has recognized: "issues relating to the validity of a search and seizure, for which an appeal is provided under section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (Ibid.) Although the record before us contains an application for a certificate of probable cause, we have been unable to find an order granting the application.
Penal Code section 1237.5 reads as follows: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:
"(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
"(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
The defendant was represented by counsel at all stages of the proceedings. Prior to entering his plea he was fully advised of his constitutional rights by use of a written plea form and waived those rights. There are no search and seizure issues here. The court acted well within in its discretion in rejecting probation and imposing a term in state prison.
Our review of the record, however, reveals an ambiguity in the plea that may affect the calculation of custody credits. We requested supplemental briefing on this issue initially from defendants counsel, and after receipt of the letter brief we invited the parties to submit additional briefing.
Count 2 of the information alleged that defendant "did commit a felony, namely: FIRST DEGREE BURGLARY, PERSON PRESENT, a violation of Section 459 of the Penal Code." Count 2 also contained the following in a separate paragraph: "NOTICE: The above offense is a serious felony within the meaning of Penal Code Section 1192.7(c) and a violent felony within the meaning of Penal Code 667.5(c)." After a less than clear discussion of the custody credits defendant would be entitled to, the court awarded local custody credits pursuant to the provisions of section 4019. The abstract of judgment describes the crime as "FIRST DEGREE BURGLARY, PERSON PRESENT." If defendant entered a plea to a first degree burglary within the meaning of section 667.5, subdivision (c)(21), defendants credits were required to be calculated pursuant to the provisions of section 2933.1 which limits custody credits to 15 percent.
A violent felony is defined in section 667.5, subdivision (c)(21) as: "Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary."
Section 2933.1 provides in full: "(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.
"(b) The 15-percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section.
"(c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).
"(d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative."
Defendant argues that his plea did not bring him within the provisions of section 667.5, subdivision (c)(21). The People observe that "[defendant] arguably pleaded to a violent felony." From our review of the record we are unable to determine if defendant as part of the negotiated disposition agreed to enter a plea to Count 2 that would bring him within the provisions of section 667.5, subdivision (c)(21) that would in turn restrict his custody credits to 15 percent as mandated by section 2933.1. In view of this ambiguity, we will remand this matter to the trial court to clarify the plea.
CONCLUSION
The matter is remanded to the trial court to clarify whether or not the defendant entered a plea to first degree burglary "wherein it [was] charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).) If it determines that the plea came within the provisions of section 667.5, subdivision (c)(21), it will calculate custody credits pursuant to section 2933.1. If it determines the plea did come within the provisions of section 667.5, subdivision (c)(21), it shall prepare an amended abstract of judgment eliminating the reference to "PERSON PRESENT." The clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections.
The judgment is affirmed in all other respects.
We concur:
Margulies, J.
Flinn, J.