Opinion
B228063
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE E. FALU-MENDOZA, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Luster and Baine P. Kerr, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA 079253)
APPEAL from a Judgment of the Superior Court of Los Angeles County, James B. Pierce, Judge. Affirmed with directions.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Luster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
In this appeal, Jose E. Falu-Mendoza challenges his resentencing, contending that the trial court erred in its determination of his presentence credits. We find no error in the court's determination of appellant's presentence credits, though the abstract of judgment should be amended to reflect appellant's time in custody between his original sentencing and resentencing. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 2008, appellant was charged by information with one count of sale of cocaine base. In addition, the information alleged that appellant had suffered a prior conviction of a serious or violent felony (robbery) within the meaning of the "Three Strikes" law. The information also alleged that appellant had suffered five prior prison terms.
1. Plea Hearing and Original Sentencing
On January 15, 2009, appellant pled no contest, admitted the prior strike, and admitted the five prior prison terms. At the plea hearing, the court discussed with appellant that his plea agreement provided for eight years in state prison and provided he would be eligible for "50 percent [conduct credits] instead of the 80 percent that he would have been eligible for."
The transcripts of the plea hearing and the original sentencing hearing are not part of the record in this appeal; however, they are part of the record in the proceedings on appellant's petition for writ of habeas corpus (case No. B224179), discussed further below. We take judicial notice of the record in appellant's habeas proceeding pursuant to Evidence Code sections 452, subdivision (d)(1), and 459.
On August 18, 2011, we advised the parties that we intended to take judicial notice of the record in appellant's habeas proceedings and invited their views, within 10 days, on the propriety of taking judicial notice. Appellant responded by letter dated August 19, 2011, that he had no objection to the taking of judicial notice. Respondent responded by letter dated August 25, 2011, that it had no objection to the taking of judicial notice.
The trial court originally sentenced appellant on April 2, 2009. The court sentenced appellant to a total of eight years in state prison. This consisted of the low term of three years in state prison for sale of cocaine base, which was doubled to six years because of appellant's prior strike. The court also imposed two years for two of the prior prison terms and struck the punishment on the other three prior prison terms. The court gave appellant credit for 241 actual days in jail and 120 days of conduct credit, for a total of 361 days of credit against his sentence.
2. Appellant's Petition for Writ of Habeas Corpus
On May 5, 2010, appellant filed a petition for writ of habeas corpus in this court. Upon consideration of the record in the writ proceeding, this court concluded that appellant had made a prima facie case for relief to the extent he claimed his sentence violated the terms of his plea agreement because the sentence did not enable him to earn custody credits at a rate of 50 percent. Pursuant to Penal Code sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1), the court had doubled appellant's prison term based on his admission of having suffered a qualifying prior strike. Because of the prior strike, appellant's postsentence credits could not exceed 20 percent of his total term of imprisonment. (§§ 667, subd. (c)(5), 1170.12, subd. (a)(5).) Absent the prior strike, appellant would have been eligible for six months of credit for every six months actually served -- i.e., he would have been eligible to have his sentence reduced through credits by 50 percent. (§ 2933, former subd. (a) (2009).)
All further statutory references are to the Penal Code.
We issued an order to show cause (OSC) before the trial court why appellant's sentence should not be vacated and appellant resentenced in a manner consistent with his plea agreement. We authorized the trial court to discharge the OSC and proceed in another manner if such manner resulted in a new sentence consistent with the plea agreement and all parties consented to such other manner.
3. Appellant's Resentencing
The trial court resentenced appellant on August 18, 2010. The court explained that "[t]his court erroneously used a strike in regards to sentencing. . . . The court should not have used the strike, pursuant to the agreement that it was going to be a 50 percent time eligibility as opposed to 80 percent. [¶] So at this time the court is prepared to resentence the defendant based on the original deal that was made of eight years, eligible for 50 percent. So the court will not use the strike to get to that eight years."
The court again sentenced appellant to a total of eight years in state prison. Appellant's sentence consisted of the upper term of five years for sale of cocaine base, plus an additional three years for three of the prior prison terms pursuant to section 667.5, subdivision (b). The court "stay[ed] all punishment" on appellant's prior strike and on the other two prior prison terms, stating that, "based on this new sentencing scheme, he's eligible for 50 percent good-time/work-time credits."
The court awarded appellant the same amount of presentence credits he received at his original sentencing, 361 total days of credit consisting of 241 actual days served and 120 days of conduct credits. The court then directed the Department of Corrections and Rehabilitation (Department) to calculate appellant's custody credits from the date of his original sentencing to the present date.
Appellant filed a timely notice of appeal on October 5, 2010.
DISCUSSION
1. The Abstract of Judgment Should Reflect Credits for the Time Appellant Served Between the Original Sentencing and the Resentencing
Appellant first contends that the trial court erred when, on remand, it did not determine the actual time he served in state prison prior to resentencing and award that time as "presentence" credits at his resentencing. We agree that the abstract of judgment should reflect credits against his new sentence for the actual time spent in custody between the original sentencing and the resentencing. Controlling California Supreme Court authority, People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter) guides us on this issue.
In Buckhalter, the court held that once a defendant is committed to prison, his custody "is thereafter considered service of his sentence, and a remand with respect to a sentence the defendant is already serving does not render him eligible for credits of the presentence kind." (Buckhalter, supra, 26 Cal.4th at p. 33.) But once the trial court modifies the defendant's sentence on remand, the trial court is "obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time." (Id. at p. 37; id. at p. 29 ["when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody"].) The trial court's obligation to include these credits arises from section 2900.1, which provides: "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (See Buckhalter, at p. 32.)
Here, the trial court awarded appellant the same number of credits at his resentencing as it did at his original sentencing -- 361 total days consisting of 241 actual days served and 120 days of presentence conduct credits. At the resentencing, the court recognized that appellant was entitled to credits for time served between the original sentencing and resentencing, but it left the calculation of such credits to the Department and did not include the credits on the new abstract of judgment:
"THE COURT: [¶] . . . [¶] But how do you want to handle the credits? You want to just do it as of the date of the original sentencing?
"[DEFENSE COUNSEL]: Yes, Your Honor.
"THE COURT: Okay.
"[DEFENSE COUNSEL]: I believe the original plea [sic] he was given 241 days credit.
"THE COURT: We need credits as of today's date.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: Okay. I'll let them handle it then. We'll do the same credits as of that date and let them recalculate it. [¶] . . . [¶]
"THE COURT: [¶] . . . [¶] He'll receive credits. I believe it was 246 as of that sentencing date of February 23, '09. Is that the date? No.
I'm sorry. He was actually sentenced on April 2nd, 2009. So he'll get those same credits. And the Department of Corrections is to recalculate based on that date to the present date."
Appellant's abstract of judgment upon resentencing reflected 241 days of credit for time served and directed the Department to calculate his custody credits "post April 2, 2009."
As the Buckhalter court held, appellant's credits for time served between original sentencing and resentencing should have been calculated by the court and reflected in the abstract of judgment. The abstract of judgment must be amended accordingly.
We reject appellant's nomenclature and do not refer to the additional credits as "presentence" credits because, under Buckhalter, these are not credits of the presentence kind. (Buckhalter, supra, 26 Cal.4th at p. 33.)
2. The Trial Court Did Not Err Regarding Appellant's Presentence Conduct Credits
Appellant next contends that he is entitled to additional presentence conduct credits for the time he spent in custody before his original sentencing. He asserts that, pursuant to an amendment to section 4019 in January 2010, the court should have awarded double the 120 days of conduct credits. We disagree.
The court originally sentenced appellant in April 2009. Under the version of section 4019 then in effect, he was deemed to have served six days for every four days spent in actual custody, giving him "a total of two days of conduct credit for every four-day period of incarceration." (People v. Dieck (2009) 46 Cal.4th 934, 939.) Effective January 25, 2010, however, the statute was amended to increase the number of presentence conduct credits available to certain defendants. For eligible defendants, section 4019, former subdivision (f), provided that "a term of four days will be deemed to have been served for every two days spent in actual custody," giving defendants two days of conduct credit for every two days in custody. Persons with a prior conviction for a serious felony were ineligible to earn credits at the increased rate. Appellant claims that he should have accrued presentence conduct credits at this increased rate.
The Legislature amended section 4019 again, effective September 28, 2010, but that amendment applies to defendants confined for crimes committed on or after the effective date. (§ 4019, subd. (g).)
We hold that appellant is not entitled to benefit from the changes effected by the January 25, 2010 amendments. A judgment becomes final when the time for petitioning the highest court authorized to review it has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Appellant was sentenced and judgment was rendered in April 2009. Appellant had 60 days from rendition of the judgment to file a notice of appeal. (Cal. Rules of Court, rule 8.308(a).) This court was the highest court authorized to review the judgment in the first instance, and appellant did not appeal to this court. The judgment thus became final in June 2009. It was not until approximately six months later that the amendments to section 4019 became effective. Approximately five months after that, appellant filed his habeas petition. Our OSC regarding the petition did not reverse the judgment, and the OSC was clear that there was a narrow issue to be dealt with in the trial court -- appellant's claim that his sentence violated the plea agreement because it did not enable him to earn credits at a rate of 50 percent. The limited remand to the trial court on this narrow sentencing issue did not reopen appellant's case for all purposes. Appellant was awarded credits under the statute in effect when the judgment became final, and he cannot claim to benefit from a later amendment.
While the amendments became effective in January 2010, the Legislature actually passed the amendatory bill in October 2009. (See Stats. 2009, 3d Ex. Sess. 2009, ch. 28, § 50.) Even at that time, the judgment had been final for months.
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Our holding here leaves undisturbed our holding elsewhere that amended section 4019 applies retroactively to cases not yet final when the amendment took effect, an issue that is now on review before the Supreme Court. (See People v. Bacon (2010) 186 Cal.App.4th 333, 336 (review granted Oct. 13, 2010, S184782); People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963).) This case is in a materially different procedural posture than cases in which we and other courts have applied the amendment retroactively because appellant's case was final when the amendment took effect.
Appellant assumes that the amended section 4019 applies to his case and argues that his admitted prior conviction does not render him ineligible for the additional conduct credits under the amended statute. We need not address this argument, given our conclusion that he is not entitled to benefit from the January 2010 amendments to section 4019.
He further argues that principles of equal protection require the court to award him the additional credits. As far as we understand this argument, he essentially contends that his presentence credits must be calculated at the same rate as his postsentence credits, otherwise there is an equal protection issue. He asserts that persons who post bail and do not serve any time in prison prior to conviction and sentencing, and who also have no prior felony convictions -- or those, like him, who have a prior felony that the court struck -- reduce their sentence with day-for-day postsentence credits in prison (§ 2933). On the other hand, a person like appellant, who cannot post bail and whose prior conviction is used to deny him the day-for-day presentence credit available under amended section 4019, ends up serving a longer sentence in prison because his presentence credits are calculated under the less generous formula for prior felony offenders.
This argument is unpersuasive. The state has a rational basis, and even a compelling interest, in providing different accrual rates for presentence conduct credits (§ 4019) and postsentence conduct credits (§ 2933). (People v. Ross (1985) 165 Cal.App.3d 368, 377; People v. Caruso (1984) 161 Cal.App.3d 13, 16; see also People v. Waterman (1986) 42 Cal.3d 565, 570 [citing with approval the courts of appeal cases that "have suggested that the state's compelling interest in postconviction criminal rehabilitation, and the difficulties in establishing prison-style work-credit programs in pretrial detention, are compelling interests which justify disparate conduct-credit treatment of pre- and post-trial detention time"].)
Our Supreme Court has determined that the pre- and postsentence credit schemes "serve disparate goals and target persons who are not similarly situated." (Buckhalter, supra, 26 Cal.4th at p. 36.) The presentence credit scheme focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted and committed to state prison. (Ibid.) The postsentence worktime credit scheme, by contrast, emphasizes other considerations, including the extent to which prisoners deserve or might benefit from incentives to shorten their terms through participation in rehabilitative work, education, and training programs. (Ibid.)
Awarding appellant a different rate of accrual on his presentence and postsentence credits does not offend principles of equal protection.
DISPOSITION
The case is remanded to the trial court to prepare an amended abstract of judgment that reflects credits for the time appellant served between original sentencing and resentencing. The trial court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.