Opinion
G051947
12-19-2016
THE PEOPLE, Plaintiff and Respondent, v. ROBINSON TONATIHU FRAZER, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF3202) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Christopher J. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part and remanded with directions. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Robinson Tonatihu Frazer appeals from the trial court's postjudgment order granting his petition to recall his sentence and to reduce his burglary conviction to a misdemeanor under The Safe Neighborhoods and School Act (Proposition 47). (Pen. Code, § 1170.18; the Act.) He argues the court erred by not applying his excess custody credits (1) to the one-year parole period provided for in section 1170.18, subdivision (d), and (2) to his felony restitution and parole revocation fines. In a third argument, defendant contends his fines must be reduced to the applicable misdemeanor levels.
All further statutory references are to the Penal Code.
Defendant forfeited the third issue by failing to request such reduction of the fines in the trial court and our Supreme Court in People v. Morales (2016) 63 Cal.4th 399 (Morales) recently rejected defendant's first contention that excess credits for time served may be applied to reduce the Act's parole period. But we conclude defendant is entitled to apply those excess credits to offset his parole revocation fine, although not to his restitution fine, and remand the case for further consideration by the trial court. As modified, the order is affirmed.
I
FACTS
On September 11, 2014, defendant pleaded guilty to second degree burglary, a felony (§§ 459, 460, subd. (b); count 1), possession of burglary tools, a misdemeanor (§ 466), and false representation to a police officer, a misdemeanor (§ 148.9). The factual basis for his guilty plea on count 1 was that "on August 24, 2014, [he] unlawfully enter[ed] a commercial building with the intent to commit larceny." In exchange for his plea, the court sentenced defendant to 16 months in state prison and awarded him 38 days credit for time served. It also ordered defendant to pay a minimum felony restitution fine (§ 1202.4, subd. (b)) and a parole revocation fine (§ 1202.45), each in the amount of $300.
On November 4, 2014, the voters enacted the Act, which became effective the following day. (§ 1170.18.) On May 14, 2015, defendant filed a petition for resentencing or for reduction of count 1 to a misdemeanor. (§ 1170.18, subds. (a), (f).) The court granted the petition for resentencing under section 1170.18, subdivision (a), instead of subdivision (f), because defendant was at that time on postrelease community supervision. The court recalled defendant's sentence, ordered him to serve 365 days in county jail with 365 days of credit for time served, and placed him on one year of parole under section 1170.18, subdivision (d). Defendant filed a notice of appeal on May 15, 2015.
After defendant filed his opening brief, the trial court modified its order changing defendant's excess custody credits to 16 months. And because "[d]efendant's total credits of 16 months exceed the confinement time," the court reduced defendant's parole period to 8 months. The court also ruled that because section 18.5 provides that a defendant cannot be sentenced to more than 364 days for a misdemeanor, the court changed the sentence on count 1 to 364 days. After briefing was concluded, the California Supreme Court decided Morales which held "that credit for time served does not reduce the parole period" for purposes of the Act. (Morales, supra, 63 Cal.4th at p. 403.)
II
DISCUSSION
The Trial Court's October 30, 2015 Order
While this case was actively pending on appeal, the trial court issued a new order on October 30, 2015, regarding defendant's petition for resentencing. The trial court, however, lacked jurisdiction to make the modification because this appeal was pending. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 929-930.) While section 1237.1 gives trial courts concurrent jurisdiction to correct the calculation of presentence credits while an appeal is pending, it applies only to mathematical or clerical errors, not substantive issues like those present here. (People v. Delgado (2012) 210 Cal.App.4th 761.) Therefore, the October 30th order is void. (People v. Scarbrough, supra, 240 Cal.App.4th at p. 920.)
Application of Excess Custody Credits to the One-Year Parole Period
In his opening brief, defendant contended the court should have applied his excess credits to the one-year parole period imposed under section 1170.18, subdivision (d). In his reply brief, defendant asserts this issue has been rendered moot by the trial court's October 30, 2015 order. As noted, not only is that order void but also this claim was recently rejected in Morales, supra, 63 Cal.4th at pages 404-410.
Recalculation of Fines Using Excess Custody Credits
Defendant argues his restitution and parole revocation fines should be reduced by his excess custody credits. We agree in part and disagree in part.
In granting defendant's petition for resentencing, the trial court ordered defendant to serve 365 days in the county jail and credited him with 183 actual days, plus 182 conduct days, for a total credit of 365 days. The record, however, reflects that defendant spent 8 months in custody and was given 8 months of conduct credit for a total of 16 months (480 days) credit for time served. Defendant therefore had excess custody credits. The question is whether those credits may be used to reduce the amount of defendants' restitution and parole revocation fines.
The Attorney General contends that applying excess custody credits to a defendant's fines "will ensure that most defendants will be absolved of the responsibility to pay his or her punitive fines." No authority has been cited for this proposition. Even if true, section 2900.5, subdivision (a), expressly allows excess custody credits to be applied to reduce certain fines, regardless of the consequences.
The Attorney General maintains that this "seems at cross-purposes with Proposition 47" because "the resulting significant loss of revenue would offset the cost-saving measures that the initiative itself was designed in part to promote." But the cost-saving measures intended by the initiative are completely separate from defendant's rights under section 2900.5, subdivision (a), to have excess custody credits applied to certain fines. Given the Attorney General's admission this "issue was never addressed by the ballot materials," we decline to address this issue further.
People v. Buckhalter (2001) 26 Cal.4th 20, 33, cited by the Attorney General, is inapposite as the pertinent issue there was whether state prisoners may earn presentence credits for good behavior while "physically housed in county jail to permit his participation in the remand proceedings [for resentencing.]" Buckhalter concluded the answer was no. (Ibid.) --------
At the time of defendant's offense and sentencing, section 2900.5, subdivision (a), provided: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days . . . credited to the period of confinement pursuant to Section 4019, . . . shall be credited . . . to any fine, including, but not limited to, base fines, on a proportional basis, that may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. . . . In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine, including, but not limited to, base fines, on a proportional basis." (Stats. 2013, ch. 59, § 7, pp. 1430-1431, italics added.)
Former section 2900.5, subdivision (a), had allowed excess custody credits to be applied to both base and restitution fines. (Compare Stats. 2013, ch. 59, § 7, pp. 1430-1431 with Stats. 2011, ch. 15, § 466, p. 480.) But in 2013, the Legislature amended section 2900.5, subdivision (a), to eliminate restitution fines from the fines to which excess custody credits may be applied. (Stats. 2013, ch. 59, § 7, pp. 1430-1431.) "According to the legislative history for the 2013 amendments to section 2900.5, this amendment was intended to make section 2900.5 consistent with section 1205, which provides that a restitution fine may not be satisfied by the time a defendant is in custody. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 514 (2013-2014 Reg. Sess.) as amended Apr. 23, 2013, p. 1.) The bill analysis for Senate Bill No. 514 states: 'This bill clarifies that [a] term of imprisonment cannot satisfy a restitution fine.' [Citation.]" (People v. Morris (2015) 242 Cal.App.4th 94, 100, fn. omitted.)
A defendant is entitled to sentencing under the version of the statute in effect at the time he committed his offense. (People v. Morris, supra, 242 Cal.App.4th at p. 102.) Here, by the time defendant committed his crime in 2014, excess custody credits could no longer be applied to restitution fines. We conclude defendant is entitled to have his excess custody credits applied to his parole revocation fine but not his restitution fine.
The Restitution and Parole Revocation Fines
Finally, defendant contends that in resentencing him, the trial court erred by failing to reduce the $300 minimum felony fines imposed on him under sections 1202.4 and 1202.45 to the $150 minimum fines applicable to a misdemeanor conviction. He did not raise this issue at the time of resentencing. By failing to request the trial court to reduce the amount of the fines, defendant forfeited the issue.
"[T]o encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims" (People v. Scott (1994) 9 Cal.4th 331, 351), unless the trial court imposes an "'unauthorized sentence'" (id. at p. 354), i.e., one that "could not lawfully be imposed under any circumstance in the particular case" (ibid.), the "lack of a timely and meaningful objection forfeits or waives the claim" (id. at p. 351). This rule applies to appellate claims challenging the amount of restitution. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.)
Contrary to defendant's argument, the failure to reduce the fines did not constitute an "'unauthorized sentence'" that can be corrected at any time. The proper amount for the fines for a misdemeanor is between $150 and $1,000. (§§ 1202.4, subd. (b)(1), 1202.45, subd. (b).) Accordingly, the fines were within the permissible limits for a misdemeanor. As such, it is irrelevant whether, as defendant argues, that "it was the clear intent of the original sentencing court to set [defendant's] fines at the statutory minimum when he entered his plea."
III
DISPOSITION
The fines and fees imposed under sections 1202.4 and 1202.45 are affirmed, subject to any offset to defendant's $300 parole revocation fine due to recalculation of his custody credits. The matter is remanded to the trial court to conduct that recalculation. In all other respects, the postjudgment order is affirmed.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.