Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF102483A, SF104157A, SF104265A, SF106182A
CANTIL-SAKAUYE, J.
Defendant Jason Thomas Gaul was sentenced to four concurrent two-year prison terms for his convictions of taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), second degree commercial burglary (Pen. Code, § 459), grand theft from a person (§ 487, subd. (c)), and first degree residential burglary. (§ 459.)
Hereafter, undesignated statutory references are to the Penal Code.
Defendant’s sole claim on appeal is that under the plea bargain related to the first degree residential burglary charge he should have received the same 235 days of credit for time served as he did for his other three convictions. We disagree. However, we have noticed an error in the abstract of judgment in case No. SF106182A. We shall order correction of the abstract for that case, but otherwise affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant’s convictions are not relevant to the sole issue on appeal. We shall summarize only the relevant procedural history of these cases.
Three separate informations were filed against defendant. Pursuant to a negotiated plea bargain to resolve all three cases, defendant pled nolo contendere in case No. SF102483A to one count of taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), in case No. SF104157A to one count of second degree commercial burglary (§ 459), and in case No. SF104265A to one count of grand theft from a person (§ 487, subd. (c)) as an amended charge to the original charge of robbery (§ 211) in exchange for the dismissal of one other charged offense, the strike of a firearm enhancement, and two-year concurrent sentences on each of the three convictions. As part of the plea, the two-year sentences were stayed, the matter continued for approximately six weeks for execution of judgment, and defendant was released from custody. It was agreed that if defendant appeared on time and without any new violation, the sentences would be modified to one year.
Defendant appeared on the continued hearing date, but the trial court later determined he had committed a new violation, shoplifting, while out of custody. The trial court confirmed the original two-year sentences on each of the three cases and gave defendant credit against each sentence for 235 days of time served.
The prosecutor then brought to the attention of the court another complaint that had recently been filed against defendant. The complaint in case No. SF106182A alleged one count of first degree residential burglary (§ 459) and one count of receiving stolen property. (§ 496, subd. (a).) The trial court indicated its intention to transfer the matter to another department for arraignment. The prosecutor indicated that would be fine, but indicated for the record that there was “an offer on the table with regard to that case. That offer expires when we walk out.” The prosecutor stated the offer “was a plea to 459 first [first degree burglary] for two years concurrent.” The prosecutor agreed to give defendant a couple of minutes to discuss the offer with his counsel.
After a short break, the trial court went back on the record and the following exchange took place:
“[DEFENSE COUNSEL]: Your Honor, at this time we will waive formal arraignment and, pursuant to the offer, we will enter a no contest plea to Count 1, with the understanding that Count 2 will be dismissed. That the Court will impose the low term of two years concurrent with the -- concurrent with the other cases.
“[PROSECUTOR]: The People would ask for a guilty plea on this, Your Honor.
“[DEFENSE COUNSEL]: That’s fine.
“THE COURT: Is that the People’s position?
“[PROSECUTOR]: Yes, Your Honor. He’d plead to Count 1, 459, which is a first-degree residential burglary, a strike, for concurrent time based on what the Court just sentenced him.”
After advice and waiver of his rights, defendant entered a guilty plea to first degree residential burglary. (§ 459.) The second count of receiving stolen property was dismissed in the interest of justice in view of the plea. Defendant waived referral to the probation department for a pre-sentence report, formal arraignment and time for pronouncement of judgment. The trial court sentenced defendant to a low term of two years in state prison and ordered the sentence to be served concurrently with any other unserved term. The trial court awarded defendant one day credit for time served.
Defense counsel objected as follows:
“[DEFENSE COUNSEL]: Your Honor, as to the credits, I believe that he was -- while this was not charged until today, he was arrested on this case back on -- back on April 20th. I believe that he should get credit from April 20th.
“THE COURT: Was he ever arrested on this?
“DEFENDANT: Yes.
“[PROSECUTOR]: On this new case, the 459 first he was not. He was arrested on three other cases.
“THE COURT: But not on this?
“[PROSECUTOR]: Not on this new 459.
“THE COURT: If he wasn’t arrested, he hasn’t been arraigned until today, so he wouldn’t get credit until today, but he does get one day credit.
“[DEFENSE COUNSEL]: Your Honor, he was -- he was interrogated and gave the allegedly incriminating statement back on April 20th, and then he has been continuously in custody since then.
“THE COURT: But he hasn’t been charged with it. I don’t think he’s entitled to credit if he hasn’t been charged, if there hasn’t been a hold on him. [¶] Has there been a hold placed on him?
“[PROSECUTOR]: Due to this case, Your Honor. This case didn’t come to our attention until recently, so I don’t believe so.
“THE COURT: My clerk says he has not been booked on this yet.
“[DEFENSE COUNSEL]: I understand that, but I think that it’s entire -- basically the arrest is -- this case is involving that arrest and I think he should get credit from April 20th.
“THE COURT: Well, it may, but it’s a different case. This case is afterwards and I think he’s only entitled to credit from today.”
DISCUSSION
Defendant now claims his negotiated plea for a two-year concurrent sentence on the first degree burglary charge carried with it credit for 235 days of time served. Defendant relies on the prosecutor’s statement of the offer that defendant would “plead to Count 1, 459, which is a first-degree residential burglary, a strike, for concurrent time based on what the Court just sentenced him.” (Italics added.) According to defendant, since what the “‘court just’ did was sentence [defendant] to 2 years with 235 days credit for time served[,]” it is “virtually conclusive that [he] believed that the prison offer would result in no more or less time incarcerated than he already had on the three prior charges.”
In his reply brief, defendant claims the prosecutor stated that the plea was “‘for the concurrent time based on what [sic] the Court just sentenced him’” and argues the significance of the use of the word “the.” The reporter’s transcript of the prosecutor’s statement, however, does not include the word “the.” So we reject this portion of defendant’s argument.
As defendant notes, resolution of this issue is governed by principles of contract interpretation. “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.)
The language used by the parties when they discussed the terms of the plea offer is clear. Both defense counsel and the prosecutor expressed the understanding the bargain offered was defendant’s guilty plea to first degree burglary in exchange for dismissal of the second count and a low term sentence of two years to be served concurrent with the sentences just imposed on the other three cases. Nothing in the discussion before the court referenced time credits. Time credits, an entirely separate matter from the sentence being imposed, is determined by application of the provisions of section 4019. Nothing in the brief comments of counsel or the trial court indicate an understanding that if defendant accepted the plea offer in this fourth case, defendant would not serve any additional prison time as a result.
The subsequent conduct of defense counsel supports our construction of the plea agreement. When the trial court awarded defendant only one day of time credit, defense counsel did not object that this violated the terms of the plea agreement. Defense counsel only argued defendant had been arrested on the offense underlying the burglary charge when he was arrested in the other cases or if not actually arrested at that time, he should still be given credit from that time.
We find no error in the trial court’s failure to award defendant in case No. SF106182A the same 235 days of time credit as he was awarded in the other three cases. The trial court properly awarded defendant one day of credit for such case as the record reflects the only period of custody attributable to case No. SF106182A was the day defendant entered his plea and was sentenced. (§ 2900.5, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194; People v. Smith (1989) 211 Cal.App.3d 523, 526-527.)
Our review of the record discloses, however, an error in the abstract of judgment for case No. SF106182A. Such abstract erroneously reflects defendant’s offense as a violation of Vehicle Code section 10851, taking a vehicle without consent. The offense charged in case No. SF106182A, to which defendant pled guilty, was first degree residential burglary in violation of section 459. We shall direct correction of the abstract.
In the interest of judicial economy, we have addressed this error without first requesting supplemental briefing. Any party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgments are affirmed. The trial court is directed to amend the abstract of judgment for case No. SF106182A to reflect defendant was convicted of first degree residential burglary in violation of Penal Code section 459 and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P.J. ROBIE, J.