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People v. Gonzalez

Court of Appeals of California, Second Appellate District, Division Six.
Nov 25, 2003
2d Crim. No. B162717 (Cal. Ct. App. Nov. 25, 2003)

Opinion

2d Crim. No. B162717.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. GEORGE GONZALEZ et al., Defendants and Appellants.

Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant Gonzalez. Christopher C. Melcher, under appointment by the Court of Appeal, for Defendant and Appellant Bolden. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.


INTRODUCTION AND PROCEDURAL HISTORY

Jeffrey Lamar Bolden and George Gonzalez appeal from their convictions after their jury trial for petty theft with a prior conviction. Each of them had served qualifying prior prison terms. (Pen. Code, §§ 484, subd. (a), 666.)

In the bifurcated penalty phase, held before the court, Bolden stipulated he had suffered a prior conviction for petty theft and served a term of incarceration for that offense. He also stipulated to a special allegation that he had suffered a prior felony conviction, served a prison term, and did not remain free from custody for five years. He received a total sentence of three years.

Bolden appeals from the award of only 3 days of presentence custody credits. He argues that he should receive additional presentence credits against his current sentence, dating from his arrest on June 1, 2002, to the filing of the abstract of judgment on October 30, 2002. The People concede that Bolden is entitled to additional presentence credit against the instant sentence, but only through the date of sentencing on October 3, 2002. We agree with the People. We modify the judgment for Bolden to include 187 total days of credit against his current offense of petty theft with a prior. As so modified, the judgment is affirmed.

Gonzalez waived jury trial on the special allegations that he suffered two prior felony convictions, one of which was a strike under the Three Strikes law. (Pen. Code, §§ 1170.12, subds. (b)(1) & (c)(1), 1192.7, subd. (c), 1203, subd. (e)(4).) After finding these special allegations to be true, the court sentenced Gonzalez to a total sentence of two years eight months. Counsel for Gonzalez filed an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. As discussed below, we affirm his conviction.

FACTS

A grocery store clerk saw a man shoving a bottle of liquor down anothers pants. The clerk notified the store manager and supervisor who confronted Bolden and Gonzalez. Bolden told Gonzalez to "give him the bottle." Gonzalez retrieved the bottle from his pants, handed it to the supervisor, and the police were called. Bolden and Gonzalez left the store.

The store manager watched Bolden pull a bottle out of his pants, open it, and drink from it before appellants entered a motel room. The police knocked on the motel room door, Bolden answered, and Officer Theodore Ford saw an open bottle of Courvoisier on the nightstand. The store manager identified the men, discovered that a bottle of Courvoisier was missing from the store, and determined that no bottles of Courvoisier had been sold that evening.

DISCUSSION

Gonzalez

After counsel for Gonzalez examined the entire record, she filed an opening brief raising no issues and requesting this court to independently review the record pursuant to People v. Wende, supra, 25 Cal.3d 436. On April 24, 2003, we advised Gonzalez that he had 30 days in which to submit a written brief or letter raising any contentions or arguments he wished us to consider. To date, we have not received any written response from Gonzalez to the notice. We have examined the entire record and are satisfied that Gonzalezs attorney has fully complied with her responsibilities and that no arguable issues exist as to Gonzalez. (Id., at p. 441.) Accordingly, the judgment is affirmed as to Gonzalez.

Boldens Custody Credits

Bolden contends that the trial court erred by awarding only three days of presentence credits against his current offense. He argues that he is entitled to credit for 151 days of actual time served and 74 days of conduct credit, less the 3 days of credit already awarded, against the instant petty theft conviction. He calculates these credits from the date of his arrest on June 1, 2002, through October 30, 2002, when the abstract of judgment was filed. The People concede that Bolden is entitled to additional presentence credits, but argue that they should be limited to 187 days, consisting of 125 days of actual time and 62 days of conduct credit. The People argue that he is entitled to credits only through October 3, 2002, the date he was sentenced. We agree with the People.

Credit Against Current Theft Offense, Not Against Prior Probation Violations

"[S]ection 2900.5, subdivision (b) provides that presentence credits 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." (People v. Bruner (1995) 9 Cal.4th 1178, 1183, italics added.) "[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a but for cause of the earlier restraint." (Id ., at pp. 1193-1194.)

Bolden was arrested and placed in custody on June 1, 2002, for the instant petty theft charge. It was subsequently determined that he had been granted probation for previously inflicting corporal injury upon a spouse. (Pen. Code, § 273.5.) During March and April 2002, Bolden failed to report for probation, abstain from using alcohol and attend treatment.

On July 12, the court held a preliminary hearing for Bolden on the instant charge of petty theft with a prior. At the end of the hearing, the court held Bolden to answer on that charge and stated, "furthermore, . . . the Court will find that the evidence produced at this hearing was sufficient to find him in violation of his probation" in each of the two other cases. (Italics added.) Accordingly, the petty theft conduct which precipitated the instant arrest, conviction and sentence also constituted a basis for finding the probation violations, among other things. But, the sole basis for incarcerating him in county jail was his arrest on the instant charge of petty theft with a prior. Accordingly, Bolden is entitled to receive presentence custody credits for the jail time he served pursuant to his arrest for the theft, against the prison term he received for committing that offense.

Bolden remained incarcerated in county jail past the oral rendition of sentence on October 3, 2002, until the abstract of judgment was filed on October 30, 2002. But, he is not entitled to receive credit from the sentencing court for the days he served between October 3, 2002, and October 30, 2002, when the abstract of judgment was filed. According to the case of People v. Smith (1989) 211 Cal.App.3d 523, 527, "the sentencing court [is] to award credits for all days in custody up to and including the day of sentencing ([Pen. Code,] § 2900.5, subd. (a)) and the Department of Corrections [is] to award credits from the day after sentencing to the day before delivery to the department ([Pen. Code,] § 2900.5, subd. (e)) and all days thereafter ([Pen. Code,] § 2900)." (Italics added.) Any credits to which Bolden may be entitled after the date of sentencing should be awarded by the Department of Corrections, not the trial court, regardless of where that time was served. (Smith, p. 527.)

The judgment as to Bolden is modified to award Bolden 187 days of presentence credits: 125 days for actual custody and 62 days for conduct. (Pen. Code, § 4019.) The trial court shall amend the abstract of judgment accordingly and transmit a certified copy to the Department of Corrections. In all other respects, the judgments as to Bolden and Gonzalez are affirmed.

We concur: GILBERT, P.J., COFFEE, J.


Summaries of

People v. Gonzalez

Court of Appeals of California, Second Appellate District, Division Six.
Nov 25, 2003
2d Crim. No. B162717 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE GONZALEZ et al.…

Court:Court of Appeals of California, Second Appellate District, Division Six.

Date published: Nov 25, 2003

Citations

2d Crim. No. B162717 (Cal. Ct. App. Nov. 25, 2003)