Opinion
F077488
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GONZALEZ, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CM0900B)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Michael Gonzalez was an inmate at the Kings County Jail when he and three other inmates assaulted the victim in this case, also an inmate. Defendant was charged in the complaint with assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). The complaint also alleged a gang enhancement as to count 1 (§ 186.22, subd. (b)(1)(A)), and alleged that defendant suffered two prior serious felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory references are to the Penal Code.
The People represent that the complaint also set forth four prior prison term allegations against defendant under section 667.5, subdivision (b), but those allegations pertain to a codefendant rather than to defendant.
Under the terms of the parties' plea bargain, defendant pled no contest to assault (count 1) and admitted one of the two prior strike conviction allegations. In exchange, the substantive gang offense (count 2), the gang enhancement allegation attached to count 1 and the other prior strike conviction allegation were dismissed; and Kings Superior Court case No. 16CMS3715, which was a separate case pending against defendant for making criminal threats in violation of section 422, was dismissed in its entirety. The trial court sentenced defendant to the stipulated middle term of three years on count 1, doubled to six years based on defendant's prior strike conviction.
During sentencing, the trial court awarded defendant presentence credit in the amount of 325 days for actual time served and 324 days for conduct, which was calculated from the date of defendant's in-custody arraignment in this case through the date of his sentencing. (§§ 2900.5, subd. (a), 4019, subd. (b); People v. Arevalo (2018) 20 Cal.App.5th 821, 827 & fn. 3.) The sole claim advanced by defendant on appeal is error by the trial court in failing to award him presentence credits beginning on the date of the crime. In response, the People argue that because defendant was already in custody on another matter when he committed the assault, the assault was not the "'but for' cause" of his confinement for the period of time between the commission of the assault in this case and his arraignment. (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.)
The amendments to section 4019 that postdate defendant's sentencing are not relevant to the issue raised in this appeal. (Stats. 2018, ch. 1008, § 5 [extending conduct credit to persons confined or committed to county jail treatment facility pending restoration of competency]; Assem. Bill No. 597 (2019-2020 Reg. Sess.) ch. 44, § 3 [extending use of flash incarceration to Jan. 1, 2023].)
Defendant did not file a reply brief.
After briefing was complete, we directed the parties to file supplemental letter briefs addressing whether section 1237.1 applies to the claim defendant raises in this appeal and, if so, whether he complied with its terms. In response, the parties agree both that section 1237.1 applies to the claim in this case and that defendant did not comply with the statute.
Following review of the record, we accept the parties' concessions. Accordingly, this appeal is dismissed for lack of jurisdiction. (§ 1237.1.)
DISCUSSION
I. Procedural History
The assault for which defendant stands convicted occurred on February 4, 2017. The crime occurred in the jail, where defendant was in custody on another matter. On March 20, 2017, the district attorney filed a criminal complaint charging defendant with the assault and, on May 7, 2017, defendant was arraigned. On January 29, 2018, pursuant to the terms of the plea bargain, defendant pled no contest to the assault count in this case and admitted one prior felony strike conviction. The prosecutor dismissed the remaining counts and allegations in this case, and dismissed the pending criminal threats case, Kings Superior Court case No. 16CMS3715.
In accordance with the plea bargain, the trial court sentenced defendant to the stipulated term of six years. A criminal defendant is entitled to presentence credit both for actual time served in custody prior to sentencing and for conduct during that period (§§ 2900.5, 4019; Cal. Rules of Court, rule 4.472; People v. Duff (2010) 50 Cal.4th 787, 793; People v. Arevalo, supra, 20 Cal.App.5th at p. 827 & fn. 3) and, in this case, the court followed the probation officer's recommendation and awarded defendant presentence custody credits beginning on May 7, 2017, the date of the arraignment. The following colloquy occurred between the trial court and defense counsel during the sentencing hearing regarding defendant's presentence credit:
"[TRIAL] COURT: Any legal cause why judgment cannot now be imposed?
"[DEFENSE COUNSEL]: Yes, I think so.
[TRIAL] COURT: What is that?
"[DEFENSE COUNSEL]: There is a matter of the other 153 days when he was first taken into custody. I'm not asking you to not go forward with sentencing, but I want to preserve that issue.
"[TRIAL] COURT: Sure.
"[DEFENSE COUNSEL]: [Defendant] believes that he's entitled to that. My authority is People versus Wende. So I just wanted to preserve that issue for appeal.
"[TRIAL] COURT: So there is no legal cause why judgment cannot now be imposed?
"[DEFENSE COUNSEL]: I'm not sure what to call this, but I wanted to raise that issue.
"[TRIAL] COURT: Well, it would stop the sentencing.
"[DEFENSE COUNSEL]: I don't think we should stop the sentencing, but I want that issue raised so that it can be dealt with by the Courts of Appeals.
"[TRIAL] COURT: Very good. So that issue is reserved.
"[DEFENSE COUNSEL]: Thank you.
"[TRIAL] COURT]: As to whether or not he'd be entitled to the 153 days.
"[DEFENSE COUNSEL]: Yes.
"[TRIAL] COURT: And for the record it's my understanding that that 153 days [defendant] was in custody on another case; correct?
"[DEFENSE COUNSEL]: Yes, I believe that is an accurate assessment of it.
"[TRIAL] COURT: And he was not in custody—when he was in custody on that other case, he was not in custody on this case; correct?
"[DEFENSE COUNSEL]: That's correct because it did not occur yet.
"[TRIAL] COURT: Okay. So the Court is of the opinion that he's not entitled to those time credits because he wasn't in custody for that case. And what happened in that case, the one where he spent 153 days in custody, that case was dismissed; correct?
"[DEFENSE COUNSEL]: That is correct.
"[TRIAL] COURT: And was that part of the plea bargain in this case?
"[DEFENSE COUNSEL]: I don't think it was.
"[TRIAL] COURT: Okay. So that issue is preserved...." (Italics added.)
The basis, or possibly bases, for defendant's detention in the jail at the time of the assault is not clear from the record. During a hearing that preceded defendant's plea by approximately six months, the trial court noted that defendant had a pending felony case against him for making criminal threats under section 422, and it is that case which was later dismissed pursuant to the parties' plea bargain in this case. However, when defendant argued he was entitled to 153 days of additional credit during his sentencing hearing, the court found that he was not in custody in this case during that period. It appears from express statements made by the court and defense counsel that the case in which defendant was in custody was dismissed but not pursuant to the plea bargain in this case, suggesting, as the People observe, the involvement of a third case.
Our review is limited to the four corners of the record (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1), and the moving party bears the burden of demonstrating error on appeal (People v. Gamache (2010) 48 Cal.4th 347, 378; accord, People v. Jacobs (2013) 220 Cal.App.4th 67, 81).
The People state that the other matter was necessarily a misdemeanor because the trial court referred to the pending criminal threats case as defendant's only unadjudicated felony, and we note that because defendant has two prior serious felony convictions, he is ineligible to serve a sentence in county jail for a felony that would otherwise be served in jail. (§ 1170, subd. (h).)
II. Section 1237.1 Bars Appeal
"'There is no constitutional right of appeal from a judgment or order in criminal cases; rather the right of appeal is statutory. [Citations.]'" (People v. Delgado (2012) 210 Cal.App.4th 761, 764 (Delgado), quoting People v. Connor (2004) 115 Cal.App.4th 669, 677.) Relevant here, section 1237.1 provides, "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, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction." Section 1237.1 "'does not require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal when other issues are litigated on appeal'; if there are no other issues, however, 'the filing of a motion in the trial court is a prerequisite to raising a presentence credit issue on appeal.'" (Delgado, supra, at p. 764, quoting People v. Acosta (1996) 48 Cal.App.4th 411, 427-428, fn. omitted.)
In Delgado, this court interpreted the phrase "'an error in the calculation of presentence custody credits'" to "mean a mere alleged mathematical or clerical error" (Delgado, supra, 210 Cal.App.4th at p. 765, quoting § 1237.1), consistent with the legislative purpose underlying the statute, which "'is to curtail misuse of the formal appellate process to correct minor sentencing errors when alternative forums for resolution exist[]'" (Delgado, supra, at p. 766, quoting Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) as amended Apr. 27, 1995, p. 2, italics added). In that case, the defendant claimed he was "entitled, pursuant to the equal protection clauses of the federal and state Constitutions, to additional custody credits under the amendment to section 4019 that became operative on October 1, 2011." (Delgado, supra, at p. 764.) This court concluded that section 1237.1 does not apply to "[a] determination of which version of a statute applies—especially when, as here, that determination involves application of constitutional principles ...." (Delgado, supra, at p. 766; accord, People v. Verba (2012) 210 Cal.App.4th 991, 994.)
In this case, defendant objected during the sentencing hearing to the amount of presentence credit awarded and requested an additional 153 days of credit. As set forth in the prior section, the colloquy between the court and defense counsel indicates that the 153 days of presentence credit sought by defendant related to time in custody served prior to the date of the assault underlying the conviction in this case. The court denied the request and awarded defendant credit from the date of the arraignment on the assault charge through the date of sentencing. Defendant now challenges the failure to award credits from the date of the assault to the date of the arraignment, a claim different than that raised in the trial court.
In contrast with the defendant in Delgado, the claim presented here concerns whether the trial court properly calculated defendant's presentence credits, thus raising an error or oversight of the type that the trial court could have addressed, and potentially remedied, had it been given the opportunity to do so. (Delgado, supra, 210 Cal.App.4th at p. 767.) Therefore, we agree with the parties that section 1237.1 applies in this case and that because defendant does not raise any other issues on appeal, his claim is barred by the statute. (People v. Acosta, supra, 48 Cal.App.4th at p. 420.)
DISPOSITION
Based on defendant's failure to comply with section 1237.1, this appeal is dismissed for lack of jurisdiction.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.