Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. CR061501, CR070862.
NEEDHAM, J.
Nate Garza appeals from judgments of conviction and sentence entered after he pled guilty in two cases. He contends: (1) the abstracts of judgment must be corrected to reflect that his conviction for violating Penal Code section 288a, subdivision (b)(1) is not a violent offense (§ 667.5, subd. (c)); (2) the court’s selection of the upper term violated the Sixth Amendment under Cunningham v. California (2007) 127 S.Ct. 856; and (3) he is entitled to additional presentence custody and conduct credits. We will modify the judgment as to presentence credits and, as so modified, affirm the judgment. We will also order that the abstract of judgment set forth the correct credits and reflect that section 288a, subdivision (b)(1) is not a violent offense.
Unless otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
In case number CR061501, appellant pleaded guilty to felony false imprisonment (§ 236) and forcible rape in concert (§ 264.1). Underlying these charges was the allegation that appellant and several other people imprisoned a Jane Doe between March 7 and March 8, 2006. The court subsequently set aside appellant’s guilty plea to the forcible rape count on the People’s motion. In September 2006, the court sentenced appellant to the middle term of two years, suspended execution of the sentence, and placed appellant on probation for three years with the condition that he serve 365 days in county jail.
On February 6, 2007, a notice of probation violation was filed based on a police report alleging that appellant committed and confessed to a violation of section 261.5, subdivision (a), unlawful sexual intercourse with a minor. The court summarily revoked appellant’s probation in case number CR061501.
On March 12, 2007, the prosecution filed an information in case number CR070863, charging appellant with nine counts of sodomy with a minor (§ 286, subd. (b)(1)), eight counts of unlawful sexual intercourse with a minor (§ 261.4, subd. (c)), and two counts of oral copulation with a minor (§ 288a, subd. (b)(1)). The factual basis for the charges in this new case was the same conduct underlying the probation violation in CR061501.
On April 23, 2007, appellant admitted that he violated probation in case number CR061501. He also pleaded guilty in case number CR070863 to one count of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)) and one count of oral copulation with a minor (§ 288a, subd. (b)(1)).
Sentencing in both cases occurred on June 4, 2007. After consideration of the probation officer’s reports, the court denied probation in both cases. In case number CR070863, the court sentenced appellant to the upper term of three years for the section 261.5 offense and to a consecutive term of eight months for the section 288a offense. In case number CR061501, the court sentenced appellant to a term of eight months, to run consecutively to the three-year, eight-months imposed in case number CR070863. The court awarded appellant 158 days of custody and conduct credits in case number CR070863 and, in view of the credits appellant had accrued in case number CR061501, deemed the eight-month term in that case to have been served.
Appellant filed a notice of appeal in both cases.
II. DISCUSSION
We consider each of appellant’s arguments in turn.
A. Abstracts of Judgment
The abstract of judgment for both cases indicates that appellant’s section 288a, subdivision (b)(1) offense for oral copulation with a minor is a violent felony. However, section 667.5, subdivision (c) does not identify section 288a, subdivision (b)(1) as a violent felony. (See § 667.5, subd. (c)(5) [listing § 288a, subds. (c) and (d)].) Respondent agrees the abstracts of judgment should be modified accordingly.
The abstract of judgment shall be modified to reflect that appellant’s conviction under section 288a, subdivision (b)(1) was not for a violent felony.
B. Selection of Upper Term of Sentence
In imposing the upper term, the trial court relied on the following aggravating facts: appellant caused the victim emotional injury, was warned and told to stay away from the victim, showed no remorse by the time of sentencing, was on probation, and had a prior criminal record.
Appellant contends that the court’s reliance on aggravating factors, other than the facts of recidivism, violated his Sixth Amendment rights under Cunningham. He acknowledges, however, that our Supreme Court determined otherwise in People v. Black (2007) 41 Cal.4th 799, 812, 815-817, which held that imposition of the upper term is permissible under Cunningham if at least one of the factors on which the court relied was the defendant’s recidivism, whether or not the court relied on other aggravating factors. Appellant does not dispute that his prior criminal record and probation violation would justify the upper term under Black. He also recognizes that we are bound to follow the precedent of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and indicates that he raises the argument to preserve it for federal review.
We will follow Black and conclude that the imposition of the upper term did not violate appellant’s Sixth Amendment rights.
C. Additional Presentence Custody Credits
Lastly, appellant contends that the court erred in calculating his presentence custody credits because: (1) all the days he spent in presentence custody in both cases should be credited against his aggregate prison term imposed for both cases; and (2) the court erred in computing the time he spent in presentence custody in case number CR070863. After reviewing the applicable law, we will address his second contention first.
Generally, we do not entertain challenges to the calculation of presentence credits unless the matter was first raised in the trial court. Section 1237.1 reads: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” (See People v. Fares (1993) 16 Cal.App.4th 954 [appropriate method of correcting presentence custody credits is to move for correction in the trial court] (Fares); People v. Clavel (2002) 103 Cal.App.4th 516 [in light of Fares and § 1237.1, appeal requesting correction of presentence custody credits dismissed because record did not disclose an appropriate motion in the trial court].) Defense counsel contended at the sentencing hearing that all presentence custody credits should be credited against his entire term. However, the record does not indicate any objection in the trial court to the calculation of presentence custody credits in CR070863. Nonetheless, in the interest of judicial economy—and the fact that the parties agree on what the proper calculation should be—we will give effect to their agreement and order that the judgment be modified in this regard.
1. The Law
Under section 2900.5, subdivision (a), a defendant is entitled to credit against his prison sentence for all days spent in actual custody before sentencing. (People v. Cooper (2002) 27 Cal.4th 38, 40.) The term “days,” for this purpose, includes partial days. (People v. King (1992) 3 Cal.App.4th 882, 887.) In addition, a defendant who is not convicted of a violent felony is entitled to conduct credits of up to 50 percent of his actual presentence confinement. (§§ 2900.5, subd. (a), 4019; Cooper, supra, 27 Cal.4th at p. 40.) Under section 4019, a defendant accrues conduct credits through a formula that divides the days of actual custody credit by four and then multiplies the result, excluding any remainder, by two. (King, supra, 3 Cal.App.4th at pp. 884-885.) Credit shall be given “only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b).)
Section 2900.5, subdivision (a) provides in part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including . . . jail . . ., all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . . 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. . . .”
2. Appellant’s Presentence Custody
Appellant’s days of actual local custody were as follows: (1) 182 days from his arrest in case number CR06151 on March 16, 2006, to his grant of probation on September 13, 2006; (2) 49 days from September 14, 2006, when appellant began serving a jail term as a condition of probation in case number CR061501, to November 1, 2006, when he was released from custody; and (3) 120 days from February 2, 2007, when appellant was arrested for the offenses in case number CR070863 (which also constituted a probation violation in case number CR061501) to June 4, 2007, when he was sentenced to state prison.
3. Calculation of Credits in CR070863
As to his custody beginning on February 2, 2007, appellant served 120 actual days in local custody. This entitled him to 180 days of presentence custody credits (120 actual days plus 60 conduct days). The trial court awarded him only 158 days, apparently based on the probation report, which erroneously calculated his custody through May 21, 2007, instead of through June 4, 2007.
The parties agree that appellant’s custody between February 2, 2007, and his release on June 4, 2007, was attributable to the offenses in CR070863, and that he should receive 180 days of presentence custody credit against his sentence in that case. The judgment and abstract of judgment shall be modified accordingly.
4. Application of Credits in CR061501 to Aggregate Sentence
In regard to CR061501, the court sentenced appellant to a term of eight months, to be served consecutive to his term in CR070863. Recognizing the time appellant had already served in CR061501, the trial court instructed the clerk to “note that eight-month sentence is deemed served in full because he has served more than eight months.” (See § 2900.5, subd. (a).) Appellant claims he was short-changed in this regard, because he had served 231 days of actual time in relation to CR061501, which purportedly entitled him to credits of 346 days, which is more than eight months. By refusing to apply the excess to his sentence in CR070863, he argues, he lost credits to which he was entitled.
The court also stated that appellant had served “two hundred thirty days actual plus balance under 4019 to total eight months.”
Appellant’s argument thus pertains more to methodology than to calculation. In essence, he urges that all of the time he served in custody, whether in CR061501 or CR070863, should be added together and then applied against his aggregate sentence in those cases. He points out that, where a defendant is sentenced to consecutive terms from two separate cases, the sentences merge into a single aggregate term. (In re Reeves (2005) 35 Cal.4th 765, 772-773; Cal. Rules of Court, rule 4.452.) Because he served 351 days in actual local custody, he insists he was entitled to 525 days of presentence credit (351 actual days plus 174 conduct days) against his aggregate term of four years and four months. He is incorrect.
Subdivision (b) of section 2900.5 reads: “For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” (Italics added.)
Except for his custody beginning on February 2, 2007 (which we have already addressed above), his other days in local custody consist of the 182 days from his arrest in case number CR06151 to his grant of probation in that case, and the 49 days he served in jail as a condition of his probation in CR061501. All of that custody pertained exclusively to the conduct for which he was convicted in CR061501. In fact, during these periods of custody, he had not yet committed the offenses for which he was charged in CR070863. Therefore, none of those days can be used to offset his sentence in CR070863. (People v. Lacebal (1991) 233 Cal.App.3d 1061, 1066 (Lacebal); People v. Brown (1984) 156 Cal.App.3d 1131, 1135-1136 (Brown).)
In Brown, supra, 156 Cal.App.3d 1131, the defendant was convicted of two attempted thefts in 1981 and placed on probation, accruing 242 actual days in custody. (Id. at pp. 1132-1133.) Later he was convicted of burglary, and his probation in the previous case was revoked. The defendant was sentenced to the upper term of three years for the burglary, plus two concurrent four-month terms for the previous attempted thefts, to be served consecutive to the burglary sentence. (Ibid.) Because the defendant’s total presentence credits of 362 days on the attempted thefts exceeded the terms imposed for those crimes, the trial court deemed those terms to have been served. (Id. at p. 1133.) On appeal, the defendant claimed the excess presentence credits arising from the attempted thefts should be credited against his burglary sentence. (Id. at pp. 1135-1136.) The appellate court rejected his argument, explaining: “The simple fact is that appellants’ custody between October 1981 and June 1982 was not attributable to proceedings related to the burglary.” (Ibid.)
Appellant argues that Brown is no longer good law, because after the decision in Brown, California Rules of Court, rule 452 (now rule 4.452) was adopted. The rule provides that, where consecutive determinate sentences are imposed pursuant to section 1170.1, “the court must pronounce a single aggregate term . . . stating the result of combining the previous and current sentences.” (Cal. Rules of Court, rule 4.452.) “The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case.” (Cal. Rules of Court, rule 4.452(1).)
Appellant is incorrect. California Rules of Court, rule 4.452 does not affect how credits are to be applied, and subdivision (b) of section 2900.5 remains in full force and effect even after the advent of rule 4.452. (Lacebel, supra, 233 Cal.App.3d at p. 1066 [in case decided after adoption of former rule 452, excess credits attributed solely to the consecutive term of an aggregated sentence cannot be applied to the base term of the same aggregated sentence, where the base term is for different conduct].)
In his reply brief, appellant argues that the analysis of Lacebel (and Brown) applies only where the defendant would otherwise obtain duplicate credits, not where it would force the defendant to receive no credit for a period of local custody. For this proposition, he relies on In re Marquez (2003) 30 Cal.4th 14 (Marquez). He misreads Marquez.
In Marquez, the defendant was arrested in Monterey County for burglary and was released on bail. While on bail, he was arrested in Santa Cruz County for an unrelated burglary, and Monterey County placed a hold on him. He was convicted in the Santa Cruz case and given credit against his sentence for the time in custody from the date of his Santa Cruz County arrest to the date he was sentenced in the Santa Cruz case. He then was returned to Monterey County jail and convicted. The Monterey court credited him with time spent in custody between his arrest and release on bail and between the date of the hold and his sentence in the Santa Cruz case, but did not give him credit for the time he spent in custody between the day he was sentenced in the Santa Cruz case and the day he was sentenced in the Monterey case. Later, his conviction in the Santa Cruz case was reversed, and the charges were dismissed. He then sought credit in the Monterey case for the time he spent in custody after he was sentenced in the Santa Cruz case and before he was sentenced in Monterey County. (Marquez, supra, 30 Cal.4th at pp. 17-18, 24.) The Supreme Court concluded he was entitled to the credits, because when Monterey County put a hold on him subsequent to his arrest in the Santa Cruz case, his custody became attributable to the pending criminal charges in both counties. (Id. at p. 20.) To refuse to apply the credits against the Monterey sentence, the court noted, would render his time “dead time” —time spent in custody for which he receives no benefit. The court observed: “Sometimes this result is unavoidable. For example, had petitioner’s Santa Cruz County presentence custody been attributable solely to the Santa Cruz County charges (that is, had Monterey County never placed a hold), dismissal of the Santa Cruz County charges would have left petitioner with no sentence against which credit for that period could be applied. But because his custody after placement of the Monterey County hold was attributable to both his Santa Cruz and Monterey County cases, dismissal of the Santa Cruz County charges still left him with the Monterey County sentence against which credit for all of his custody from placement of the Monterey County hold until imposition of sentence could be applied.” (Id. at pp. 20-21, italics added.)
Marquez does not help appellant at all. It does not stand for the proposition that a defendant’s presentence custody in multiple cases should be aggregated and then applied against his aggregate sentence. To the contrary, it reaffirms that custody credits accrued for particular conduct can be applied only against a sentence for that same conduct. As our Supreme Court contemplated in Marquez, appellant’s loss of some credits he accrued in regard to CR061501 is unavoidable: unlike the credits at issue in Marquez, those credits are attributable only to the conduct underlying CR061501.
III. DISPOSITION
The judgment is modified to reflect 180 days (rather than 158 days) of credit against his sentence in case number CR070863. As so modified, the judgment is affirmed. The abstract of judgment shall be modified to reflect 180 days of credit (comprised of 120 actual days and 60 local conduct days) against appellant’s sentence in case number CR070863, and to reflect that his conviction for section 288a, subdivision (b)(1) is not a violent felony (by indicating the term for that conviction is imposed as “consecutive 1/3 non-violent” rather than “consecutive 1/3 violent”).
We concur. SIMONS, Acting P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.