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People v. Gore

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 23, 2012
F061815 (Cal. Ct. App. Jan. 23, 2012)

Opinion

F061815 Tulare Super. Ct. No. VCF233422

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALAN GORE, Defendant and Appellant.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

On February 24, 2010, the Tulare County District Attorney filed felony complaint No. VCF233422 in superior court charging appellant Anthony Alan Gore as follows:

Count 1 - unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a));

Count 2 - receiving a stolen vehicle (Pen. Code, § 496d, subd. (a));

All further statutory references are to the Penal Code unless otherwise stated.

Count 3 - possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a));

Count 4 - driving while addicted (Veh. Code, § 23152, subd. (c)); and

Count 5 - driving with a suspended license with prior convictions (Veh. Code, § 14601.2, subd. (a)). The district attorney specially alleged appellant had sustained two prior felony convictions and was presumptively ineligible for probation (§ 1203, subd. (e)(4)).

On February 26, 2010, appellant pleaded no contest to counts 1, 3, and 5 and admitted a violation of probation in exchange for dismissal of counts 2 and 4. The superior court indicated appellant would be referred to drug court.

On March 8, 2010, the superior court determined appellant was ineligible for a drug court disposition because of a previous grant of drug court.

On January 18, 2011, after a number of continuances, the court conducted a sentencing hearing in this case No. VCF233422, and another case, No. VCF239314, entailing a charge of solicitation of murder. The court denied appellant probation, sentenced him to the middle term of six years in case No. VCF239314, and imposed concurrent two-year terms on counts 1 and 3 in case No. VCF233422. As to case No. VCF233422, the court imposed an $800 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine (§ 1202.45), imposed a $1,695.16 restitution fine, and awarded 286 days of custody credits.

On February 1, 2011, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea that did not affect the validity of the plea.

STATEMENT OF FACTS

The following facts are taken from the abbreviated report and recommendation of the probation officer dated January 18, 2011:

On the morning of February 22, 2010, Tulare police officers conducted a traffic stop on a vehicle driven by the appellant because the vehicle did not have month or year tags on the rear license plate. Officers then determined the front and rear license plates of the vehicle did not match. They conducted a search of appellant and found a small baggie containing 0.01 grams of methamphetamine. The vehicle belonged to appellant's former girlfriend, M.L. She said appellant took the vehicle without her permission, and she reported it stolen on January 21, 2010. Appellant told investigators the methamphetamine belonged to his current girlfriend, Veronica Alvarado. He said they had an argument the previous evening and he assumed she placed the drugs in his pocket. Appellant said he was unaware the methamphetamine was on his person. Appellant admitted the vehicle once belonged to M.L. and claimed she had told him he could keep the vehicle. He said M.L. made this statement before they broke up six weeks earlier. Appellant admitted he did not return the vehicle after he broke up with M.L. He said he was unaware that M.L. had reported the vehicle stolen. Appellant denied altering the license plates on the vehicle.

DISCUSSION

I. THE COURT SECURITY FEE SHOULD BE REDUCED FROM $120 TO $90 PURSUANT TO SECTION 1465.8, SUBDIVISION (a)(1)

Appellant contends and the People concede the amount of the court security fee must be reduced from $120 to $90 to comply with the law in effect at the time he sustained the judgment of conviction as to three counts.

The People explain:

"On February 26, 2010, appellant pleaded no contest to counts 1, 3, and [5]. [Citations.] On that date, section 1465.8, subdivision (a)(1), required a $30 fee be imposed on every conviction. On October 19, 2010, section 1465.8 was amended to raise the fee to $40 until July 1, [2]011, when it would revert to $30. (Stats. 2010, ch. 720, § 33.) On January 18, 2011, the trial court sentenced appellant and ordered him to pay a $120 court security fee pursuant to section 1465.8, or $40 for each of his three convictions. [Citations.]
"In People v. Davis (2010) 185 Cal.App.4th 998, 1001, the court held that a defendant 'stands "convicted" ' on the date of the entry of a guilty plea or upon the return of a guilty verdict .... [I]n this case, the abstract of judgment must be modified to order appellant to pay $90 ($30 for each conviction), because at the time of his no contest pleas section 1465.8, subdivision (a) provided for a fee of $30 for each conviction."

The superior court is directed to reduce the amount of the court security fee from $120 to $90 pursuant to the authority of section 1465.8, subdivision (a)(1).

II. THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED TO SEPARATELY LIST THE LAB AND DRUG PROGRAM FEES AND RECITE APPLICABLE PENALTY ASSESSMENTS IN DETAIL

Appellant contends and the People concede the abstract of judgment must be amended to separately list the laboratory and drug program fees imposed by the superior court.

Citing People v. High (2004) 119 Cal.App.4th 1192, 1201 (High), the People correctly note the trial court must "amend the abstract of judgment to separately list, with the statutory bases, all fines, fees and penalties." These fines, fees, and penalties include:

--A $50 Criminal Laboratory Analysis Fee (Health & Saf. Code, § 11372.5);

--A $100 Drug Program Fee (Health & Saf. Code, § 11372.7);

--A $150 State Penalty Assessment (§ 1464, subd. (a));

--A $67.50 Criminal Justice Facilities Construction Fund Penalty Assessment (Gov. Code, § 76101);

--A $15 Courthouse Construction Fund Penalty Assessment (Gov. Code, § 76100);

--A $15 Dinuba Courthouse Construction Fund Penalty Assessment (Gov. Code, § 76100);

--A $30 Maddy Emergency Medical Services Fund Penalty Assessment (Gov. Code, § 76000.5);

--A $7.50 Maddy Emergency Medical Services Fund Penalty Assessment (Gov. Code, § 76000.5);

--A $75 State Court Construction Penalty Assessment (Gov. Code, § 70372); --A $30 Criminal Fine Surcharge (§ 1465.7);

--A $15 DNA Identification Fund Penalty Assessment (Gov. Code, § 76104.6); and

--A $15 DNA Additional Penalty Assessment (Gov. Code, § 76104.7).

Although the abstract of judgment lists a lump sum of $570 in the "fines" section of the abstract, the fines, fees, penalties, and assessments are not separately delineated as required by High. The superior court is directed to amend the abstract of judgment to separately identify and set forth all fines, fees, penalties, and assessments.

III. THE TRIAL COURT SHOULD PREPARE AN AMENDED ABSTRACT OF JUDGMENT SETTING FORTH THE NUMBER OF DAYS OF PRESENTENCE CUSTODY CREDITS

Appellant contends and the People concede his existing abstract of judgment does not reflect the award of a total of 662 days of custody credits.

The People explain:

"In this case, at sentencing on January 18, 2011, the trial court awarded appellant a total of 286 days of presentence custody credits. [Citation.] On May 26, 2011, the trial court entered an order purporting to amend the abstract of judgment to reflect that it had awarded appellant a total of 662 days of presentence custody credits. [Citation.] The May 26, 2011, order does not comply with section 1213, subdivision (b) because the first page is not identical to [Judicial Council Form No.] CR-290 [abstract of judgment — prison commitment —determinate]."

Section 1213.5 states: "The abstract of judgment provided for in Section 1213 shall be prescribed by the Judicial Council." The superior court is directed to prepare an amended abstract of judgment utilizing Judicial Council Form No. CR-290 and set forth appellant's presentence custody credits.

IV. THE TRIAL COURT SHOULD RESOLVE THE ISSUE OF CONTESTED CUSTODY CREDITS AND ISSUE AN AMENDED ABSTRACT OF JUDGMENT

In a supplemental brief in related appeal No. F061646, appellant contends the judgment must be corrected to provide six more days of custody credits for time served.

We acknowledge this issue was raised in a companion appeal that was not formally consolidated with the instant appeal. We further acknowledge that on April 8, 2011, this court denied appellant's request to have case Nos. F061646 and F061815 consolidated. Nevertheless, we address the sentencing credits issue here in the interests of efficiency of administration and conservation of scarce judicial resources.
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Appellant explains that he was arrested for the crimes charged in superior court Case No. VCF233422 on February 22, 2010, and was in jail when the alleged solicitation of murder took place. The felony complaint in the latter case, No. VCF239314, was filed July 14, 2010, and appellant remained in custody until his sentencing on January 18, 2011. Appellant contends he is entitled to credit "from and including the date the complaint was filed on July 14, 2010, through and including the date of sentencing on January 18, 2011. This amounts to 189 days. With corresponding conduct credit of 189 days, pursuant to Penal Code section 2933, subdivision (e), appellant is entitled to a total of 378 days presentence custody credit against the six year term." (Emphasis in original.)

Respondent acknowledges that appellant was in custody when he committed the solicitation of murder and, therefore, entitled to presentence custody credits. However, respondent maintains those custody credits commence on the day appellant was arraigned on the solicitation charge, July 15, 2010, and continued to the date of sentencing, January 18, 2011. Respondent calculates the applicable number of days in the following manner:

"On the date of arraignment, his custody became attributable to the solicitation case. (§ 2900.5, subd. (b).) That period is 188 days. He is also entitled to 188 days of good conduct credit pursuant to section 2933, for a total of 376 days. Contrary to appellant's argument, the date the complaint was filed had no effect on his custody. The operative date that started the presentence custody clock was arraignment since on that date the court remanded appellant and set bail in the solicitation case."

In reply, appellant contends he is entitled to custody credits from the date of arrest. (People v. Schuler (1977) 76 Cal.App.3d 324, 332.) He notes the prosecutor attached a declaration in support of arrest warrant to the complaint for solicitation of murder. Although the trial court did not sign the copy of the application set forth in the appellate record, appellant notes "it is clear that the prosecutor sought to place appellant under arrest for the solicitation charge on July 14, 2010, the same day as the complaint was filed. A formal arrest was ... unnecessary, since appellant was already in custody on other charges where judgment had not been pronounced."

Thus, appellant and respondent are disputing the award of two days of presentence custody credits. The Fourth Appellate District has noted there is no time limitation upon the right to make the motion to correct the sentence. The trial court's power to correct its judgment includes corrections required not only by errors of fact (such as in mathematical calculations) but also corrections required by errors of law. "Where a remedy is available in a lower echelon of judicial administration, recourse to such should be required before the resort to appellate review." (People v. Fares (1993) 16 Cal.App.4th 954, 959.) "When the record on appeal discloses error in the calculation of presentence custody credits and/or error in the abstract of judgment ... appellate counsel should attempt correction in the trial court. Appeal is available if the dispute cannot be resolved in the trial court." (People v. Culpepper (1994) 24 Cal.App.4th 1134, 1139.)

The superior court should determine the appropriate presentence custody credits.

DISPOSITION

The superior court is instructed to resolve the dispute over the contested two days of presentence custody credits and prepare an amended abstract of judgment setting forth: (a) a total court security fee of $90; (b) a detailed recitation of fines, fees, penalties, and assessments; and (c) the total number of days of presentence custody credits. In all other respects, the judgment is affirmed.

__________________

Poochigian, J.
WE CONCUR: __________________
Wiseman, Acting P.J.
__________________
Detjen, J.


Summaries of

People v. Gore

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 23, 2012
F061815 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Gore

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALAN GORE, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 23, 2012

Citations

F061815 (Cal. Ct. App. Jan. 23, 2012)