Opinion
F074694
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID OSTAS GARCIA, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15901672)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Glenda Allen-Hill, Judge. Meredith J. Watts, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
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INTRODUCTION
Appellant David Ostas Garcia pled no contest to multiple counts and admitted enhancements. At the November 7, 2016 sentencing hearing, the trial court imposed a total term of 14 years eight months and awarded a total of 698 days of credit. Garcia contends the trial court erred by improperly allocating the full amount of the credits to the misdemeanor count and the sentence therefore is unauthorized. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because Garcia challenges only the sentence, we provide a recitation of those facts and procedure necessary to a resolution of the issue.
On May 14, 2015, Garcia pled no contest to a violation of Penal Code section 594, subdivision (b)(1), vandalism resulting in damages over $400; a violation of section 203, mayhem; a misdemeanor violation of section 273.5, subdivision (a), corporal injury to a person in a dating or other relationship; a violation of section 422, criminal threats; and a violation of section 460, subdivision (a), first degree burglary, a violent felony pursuant to section 667.5, subdivision (c)(21). Garcia also admitted two prior strikes and one prior prison enhancement. In exchange, the People dismissed other counts and enhancements.
References to code sections are to the Penal Code unless otherwise specified. --------
At sentencing, the trial court noted that Garcia had admitted two prior strikes, one dating from 1997 and another from 2013. The trial court struck Garcia's prior conviction from 1997 pursuant to People v. Romero (1996) 13 Cal.4th 497. The trial court imposed an aggregate sentence of 15 years four months. As to the misdemeanor section 273.5 offense, the trial court stated, "the Court will give credit for time served in that matter." Those time credits were 236 days. The trial court denied probation on the misdemeanor and imposed "those 236 days."
On March 21, 2016, the Department of Corrections issued a letter to the trial court, indicating there was an error in sentencing. Specifically, the term imposed for a weapon enhancement was legally incorrect. The trial court prepared a modified abstract of judgment, which was filed on March 25, 2016. The modified abstract of judgment, however, failed to correct the error raised by the Department of Corrections and included another error in that it reflected a term of four months for the section 422 offense.
The trial court received a second letter from the Department of Corrections, dated April 11, 2016, pointing out both errors in the sentence as reflected in the modified abstract of judgment.
Garcia wrote a letter to the trial court on June 6, 2016, asking that Proposition 47 apply to reduce his vandalism conviction to a misdemeanor and asserting the sentence on the weapon enhancement was illegal. Garcia's defense attorney responded to the letter, notifying him the vandalism charge was ineligible for Proposition 47 relief.
On August 29, 2016, Garcia wrote the trial court stating his 1997 strike had been reduced to a misdemeanor under Proposition 47 in another court proceeding. Garcia sought a global resentencing of the current convictions. He also argued he was supposed to receive "1/3 ... time on the consecutive not 85%." The trial court ordered that Garcia be transported for a resentencing hearing.
The trial court conducted a resentencing hearing on October 24, 2016. At the resentencing hearing, the trial court acknowledged that Garcia had "written a number of documents to the Court." The trial court noted that Garcia's request to reduce some of his convictions to misdemeanors pursuant to Proposition 47 had been denied and that "[t]here were no circumstances by which the Court would strike the 2013 strike." Garcia requested and was granted a continuance of the resentencing.
A continued resentencing hearing was held on November 7, 2016, at which time the trial court stated that it had "imposed a [section] 12022 (b)(1) enhancement at the full one year as opposed to the one-third mid term as a subordinate enhancement." The trial court articulated the correct total term of imprisonment as 14 years and eight months. The trial court stated it was imposing the correct term of four months for the section 12022, subdivision (b)(1) enhancement. The trial court then stated:
"The second issues [sic] before the Court is time credits. The Court neglected to impose time credits for the prison commitment correctly. The Court did give the defendant credit on the misdemeanor that was correct. That was 118 actual, 118 good time/work time for a total of 236 days. But I think that the Court is going to have to correct the time credits on the misdemeanor since we are doing a complete resentencing on today's date."
The trial court requested updated information on credits and the probation officer responded that Garcia had 607 days actual credit, and 91 days good time/work time, for a total of 698 days. The trial court stated that as to the misdemeanor section 273.5, subdivision (a) offense, Garcia previously was given "credit for time served, but what I will do so again. 607 actual, 607 good time/work time."
The trial court proceeded to state that the resentencing hearing was on "five separate counts" and named the four felony counts and one misdemeanor count to which Garcia had pled no contest. The trial court additionally noted that a section 12022, subdivision (b)(1) enhancement applied to one count; there was one prior strike from 2013, making Garcia subject to a "second strike" sentencing; and one prior prison enhancement.
The trial court informed Garcia that he would be receiving "time credits at 85 percent." The trial court then articulated the term of imprisonment for each of the four felony convictions and the enhancements. The trial court articulated the total term as 14 years and eight months and then stated, "He does have time credits. That's 607 actual, 91 good time/work time."
After imposing various fines and fees, the trial court asked if there was anything further from the parties; both defense counsel and the People responded "No."
An amended abstract of judgment was filed November 10, 2016, which accurately sets forth the terms imposed for the felony convictions and enhancements, showing a total term of 14 years and eight months. The amended abstract also shows credits of 607 actual and 91 conduct, for a total of 698 days.
On November 15, 2016, Garcia filed an appeal from the sentence or other matters occurring after the plea.
DISCUSSION
Garcia contends the trial court erred in allocating 698 days of credit to the misdemeanor count, thus imposing an unauthorized sentence. The People contend Garcia fails to cite authority for his contention and the error is waived; and in any event, his contention is without merit.
We decline to view the issue as waived. Garcia did not expressly waive any credits; consequently, he must be allocated and awarded all credits to which he legally is entitled. (People v. Johnson (2002) 28 Cal.4th 1050, 1055.) A sentence that fails to award legally mandated credits is unauthorized and may be corrected whenever discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Section 2900.5 provides, in pertinent part: "(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including ... any time spent in a jail, ... halfway house, rehabilitation facility, hospital, ... or similar residential institution, all days of custody of the defendant ... shall be credited upon his ... term of imprisonment." Section 2900.5, subdivision (a) further provides, "If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served." Section 2900.5, subdivision (b) provides in part, "Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed."
We acknowledge a section 273.5, subdivision (a) misdemeanor conviction is subject to a maximum sentence of one year in local custody. The trial court stated at resentencing it had "already given Mr. Garcia credit for time served, but what I will do so again." The trial court then mentioned the updated credit totals.
We decline to construe the trial court's comment as sentencing Garcia to a term that exceeded the maximum for the offense. Instead, we construe the trial court's comment as reaffirming that the sentence on the misdemeanor had been satisfied by "time served" of 236 days, which ran concurrently with the sentence for the felonies, as the trial court did not articulate a consecutive sentence. (Cal. Rules of Court, rule 4.425.)
Our construction of the trial court's comment avoids any loss of credits, or "dead time" which would create an unauthorized sentence. (People v. Gonzalez (2006) 138 Cal.App.4th 246, 252-254.) It further avoids any duplicate award of credit, prohibited by section 2900.5, subdivision (b), as well as imposition of an unauthorized sentence exceeding the maximum that could be imposed for the offense under section 273.5, subdivision (a).
Furthermore, Garcia was in "a single period of custody attributable to multiple offenses" and the trial court imposed consecutive terms of imprisonment on the felonies, thus section 2900.5, subdivision (b) is applicable. Where sentences are to be served consecutively, presentence custody credit is credited to the one continuous term. (People v. Schuler (1977) 76 Cal.App.3d 324, 330, fn. 10.)
Garcia's one continuous term was 14 years eight months and the trial court credited a total of 698 days toward that term of imprisonment, as stated at the resentencing hearing and as reflected in the amended abstract of judgment. Garcia does not contend the trial court miscalculated the credits. Consequently, all the custody and conduct credit to which Garcia was entitled was awarded and credited against his term of imprisonment.
DISPOSITION
The judgment is affirmed.