Opinion
E052019 Super.Ct.No. FMB008691
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID WILLIAM GRANT, Defendant and Appellant.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C. Taylor and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed as modified.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C. Taylor and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David William Grant appeals following the revocation and termination of his probation.
FACTUAL AND PROCEDURAL HISTORY
On January 18, 2007, defendant was charged as follows: evading an officer (count 1—Veh. Code, § 2800.2, subd. (a)); unlawfully driving or taking a vehicle (count 2— Veh. Code, § 10851, subd. (a)); and transportation of methamphetamine (count 3— Health & Saf. Code, § 11379, subd. (a)). It was further alleged defendant served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and had two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c).
All further statutory references are to the Penal Code unless indicated.
On March 19, 2007, defendant submitted an application and agreement to participate in a drug court treatment program, and was accepted into the program. Pursuant to a written plea agreement, defendant then pled guilty as charged, and the parties stipulated to a factual basis for the plea.
On June 11, 2007, the court granted defendant supervised probation for a period of three years, subject to various terms and conditions, including participation in the drug court rehabilitation program. From his first appearance there on July 2, 2007, until December 8, 2008, defendant participated in the drug court rehabilitation program. During part of this time, defendant was committed to a residential drug treatment facility.
On December 15, 2008, defendant failed to appear for drug court treatment as required by the conditions of his probation, so the court issued a bench warrant. Defendant was then a fugitive for more than a year and a half, until he appeared before the court again, in custody, on July 9, 2010.
On July 27, 2010, the court revoked and terminated defendant's probation. The court said, "Probation is terminated for his failure to appear for further drug court proceedings and leaving the program." The court sentenced defendant to a total of 14 years 8 months in state prison. To reach the total term, the court declared count 2 as the principal count and imposed the upper term of four years. On count 1, the court imposed a consecutive term of eight months. On count 3, the court imposed a consecutive term of one year. The court then added three, one-year terms for the three prior prison terms and two, three-year terms for the two priors within the meaning of Health and Safety Code section 11370.2, subdivision (c).
DISCUSSION
A. SUPPLEMENTAL PROBATION REPORT
Citing sections 1203, subdivisions (b), (b)(4), and (e)(4) and 1203.2, subdivision (b); and California Rules of Court, rule 4.411(c),, defendant contends the trial court prejudicially erred when it sentenced him to prison without first obtaining and considering an updated or supplemental probation report. Defendant believes a supplemental probation report was required, because the only probation report in the case was more than three years old at the time he was sentenced; he was eligible for probation if the court made a finding of unusual circumstances under section 1203, subdivision (e)(4); and the sentencing judge was not familiar with the facts of his case. Defendant believes the court's failure to obtain a supplemental probation report is reversible error. According to defendant, he would have obtained a more favorable result if the court had been made aware of his 18-month participation in drug court rehabilitation, his completion of a residential drug treatment program, and his progress after leaving drug court supervision.
All further rule references are to the California Rules of Court unless indicated.
Defendant does not contend that section 1210.1, also known as Proposition 36, applies to his probation or participation in the drug court treatment program. As a result, we have not considered Proposition 36 in reaching our conclusion in this case.
Courts have broad discretion to reinstate probation or impose a prison sentence, and whether to impose the upper term. We review a trial court's determination for abuse of discretion and would reverse only if there is a clear showing the sentence was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" (Ibid.)
Subdivision (b)(1) requires the court to refer the case to a probation officer for an investigation and report "if a person is convicted of a felony and is eligible for probation." (§ 1203, subd. (b)(1).) If a person has previously been convicted of two felonies, probation shall not be granted "[e]xcept in unusual cases where the interests of justice would best be served. . . ." (§ 1203, subd. (e)(4).) Here, the probation report filed June 11, 2007, indicates defendant's criminal history included more than two felonies, so he was not entitled to the original grant of probation unless the court made these special findings. It appears defendant was granted probation for several reasons. He was young and had a drug problem beginning at age 13. He admitted his criminal history was related to his drug abuse problem. He was amenable to treatment and was eligible to participate in the drug court treatment program.
"At any time during the probationary period . . . if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation . . . the officer may . . . rearrest the person and bring him or her before the court. . . . Upon such rearrest . . . the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses . . . ." (§ 1203.2, subd. (a).)
In related section 1203.2, subdivision (b), it states in part as follows: "Upon its own motion or upon the petition of the probationer, probation officer or the district attorney . . . , the court may modify, revoke, or terminate the probation of the probationer . . . . The court shall refer its motion or the petition to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and . . . may modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require." (§ 1203.02, subd. (b).) In addition, section 1203, subdivision (b)(4) states as follows: "The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court . . . ." (§ 1203, subd. (b)(4).)
Rule 4.411(c) provides as follows: "The court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." The Advisory Committee Comment to this rule states that: "Because such a probation investigation and report are valuable to the judge and to the jail and prison authorities, waivers of the report and requests for immediate sentencing are discouraged, even when the defendant and counsel have agreed to a prison sentence. [¶] . . . [¶] Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, . . . after the apprehension of a defendant who failed to appear at sentencing. . . . [¶] . . . If a full report was prepared . . . in the same . . . jurisdiction within the preceeding [sic] six months, during which time the defendant was in custody, . . . it is unlikely that a new investigation is needed."
Here, the original probation report was filed with the court on June 11, 2007, when probation was granted. Defendant's probation was terminated and he was sentenced to prison on July 27, 2010. Thus, it is apparent that a significant time had passed since the original report was prepared and submitted to the court. A supplemental report or waiver was therefore required. The record indicates the probation department did prepare two brief reports dated July 12, 2010, and July 19, 2010. Both of these reports were prepared mostly for the purpose of calculating defendant's presentence custody credits. However, the report dated July 12, 2010, does include background information about the case, as well as a statement indicating defendant had been arrested for misdemeanor matters in Nevada and Arkansas since the original probation report was prepared. The report dated July 19, 2010, refers the court to the July 12, 2010, report for additional information. In our view, the original probation report and the two brief supplemental reports dated July 12 and 19, 2010, included enough information for the court to make its sentencing determination on July 27, 2010.
At the sentencing hearing on July 27, 2010, defendant's attorney did not request a supplemental probation report, and submitted without argument. The People contend this constituted a waiver. However, the cases cited by the People to support this argument do not consider the passage in 1996 of section 1203, subdivision (b)(4). As noted ante, subdivision (b)(4) requires the waiver of a probation report to be by written stipulation or by an oral stipulation on the record in open court. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)
Even if defendant was entitled to a more detailed supplemental report, we would conclude the error was harmless under the facts presented. There is no federal constitutional right to a supplemental probation report. As a result, any error in obtaining an updated or supplemental probation report only implicates California statutory law. Our review is therefore governed by the harmless error standard in People v. Watson (1956) 46 Cal.2d 818, 834-836. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) "That is, we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. [Citation.]" (Ibid.)
Defendant concedes in his opening brief that a supplemental probation report "may not have led to a reinstatement of probation." However, he contends a report should have been prepared because he was eligible for probation if the court found unusual circumstances under subdivision (e)(4) of section 1203. During oral argument, appellate counsel also argued a comprehensive supplemental report should have been prepared, because it could have lead to a reinstatement of defendant's probation.
Under the circumstances, we simply cannot agree there is a reasonable probability defendant's probation would have been reinstated if a more comprehensive supplemental probation report was prepared and submitted to the court for consideration. The factors affecting reinstatement simply did not weigh in defendant's favor, particularly given his criminal history and his failure to appear in the drug court treatment program for more than a year and a half. (See, e.g., rules 4.413 & 4.414.) Defendant's fugitive status for this length of time is not indicative of a minor relapse from the treatment program. Rather, it demonstrates defendant failed to complete the program, because he was no longer amenable to treatment. One of the two major provisions of the drug court treatment agreement states as follows: "Should I fail, I will be terminated from the DRUG COURT TREATMENT PROGRAM and I will be sentenced in the range indicated in the Plea Bargain Agreement."
Nor can we agree with defendant's contention it is likely the court would have imposed a more favorable sentence if a comprehensive supplemental probation report made the court aware of his efforts at rehabilitation during 18 months of participation in the drug court treatment program, as well as his progress while he was a fugitive. In our view, a comprehensive supplemental probation report would have served no real purpose, and a more favorable sentence was not reasonably probable based on the circumstances.
As the People note, defendant could have presented any information he believed was relevant to the court in other forms, such as a sentencing memorandum, arguments by counsel, or a statement by defendant at the time of sentencing.
Defendant's argument ignores rule 4.435(a), which states as follows: "When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute." In pertinent part, rule 4.435(b) states that: "On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: [¶] (1) . . . [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found." The "spirit and purpose of the rule [is to] preclude the possibility that a defendant's bad acts while on probation" will influence his sentence upon revocation of probation. (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.)
Without more, it is apparent the original probation report dated June 11, 2007, as well as the two brief reports dated July 12, 2010, and July 19, 2010, contained sufficient information for the court to determine the sentence to be imposed. It would have been inappropriate for the court to consider defendant's performance during the drug court treatment program, or his fugitive status and conduct while a fugitive, to determine the sentence to be imposed when it terminated his probation and sentenced him to prison on July 27, 2010. Based on the circumstances existing at the time probation was granted, the probation officer recommended defendant be sentenced to prison for a period of 14 years, 8 months if he failed to complete the drug court treatment program. This recommendation included the upper term on the principal count. The probation officer's recommendation was based on a number of aggravating factors. An upper term sentence may properly be imposed where even a single aggravating factor is present. (People v. Osband (1996) 13 Cal.4th 622, 728.) Defendant has presented no viable reason why the court would have rejected this recommendation and imposed a lesser sentence. Therefore, we cannot conclude there is a reasonable probability the trial court would have imposed a more favorable sentence if a more comprehensive supplemental probation report was prepared and considered by the court.
B. MISCALCULATION OF ACTUAL DAYS IN PRESENTENCE CUSTODY
Defendant contends the trial court erroneously calculated credits against his prison sentence under section 2900.5 for actual days spent in presentence custody. Defendant therefore seeks a recalculation of his credits. The parties agree the probation department's report was based on the assumption defendant would be sentenced on July 22, 2010, but he was actually sentenced on July 27, 2010. As a result, the court's calculation of actual time in presentence custody did not include credit for the five days defendant served from July 23, 2010, until July 27, 2010.
The facts are not in dispute. "Computational errors of this kind result in an unauthorized sentence, and are subject to correction by the trial court or the appellate court when presented." (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) We therefore agree defendant is entitled under section 2900.5 to credit for an additional five days of actual time in presentence custody.
According to the probation report prepared, which assumed defendant would be sentenced on July 22, 2010, defendant had accrued 290 days in presentence custody as of that date. When the five days defendant served in presentence custody from July 23, 2010, until July 27, 2010, are added to this total, defendant is entitled to 295 days in actual presentence custody under section 2900.5.
C. ACTUAL PRESENTENCE CUSTODY DAYS ELIGIBLE FOR SECTION 4019 CREDITS
At paragraph 9(f), the drug court application and agreement defendant signed on February 8, 2007, states in part as follows: "I also waive all P.C. 4019 credit as a condition of participating in the DRUG COURT TREATMENT PROGRAM." Citing People v. Black (2009) 176 Cal.App.4th 145, the parties agree this waiver only applies to credits accrued before the date the agreement was signed. As a result, defendant is not entitled to section 4019 credits for the 31 days he spent in custody from January 8, 2007, through February 7, 2007.
Citing People v. Palazuelos (1986) 180 Cal.App.3d 962, 964, defendant admits, and the People do not disagree, that defendant is not entitled to section 4019 credits for the 139 days he spent in Inroads, a residential drug treatment center, from June 18, 2008, until November 3, 2008. In Palazuelos, the appellate court concluded defendants who are confined in drug treatment facilities as a condition of probation and later sentenced to prison after revocation of probation are not covered by the provisions of section 4019. (Palazuelos, at pp. 964, 965-966.) We therefore agree defendant is not entitled to conduct credits under section 4019 for the 139 days he spent at Inroads.
Defendant is, however, entitled to credit against his prison sentence under subdivision (a) of section 2900.5 for the actual days he spent at Inroads. Subdivision (a) of section 2900.5 states in part as follows: "[W]hen the defendant has been in custody, including but not limited to, any time spent in jail, . . . rehabilitation facility, . . . or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order. . . shall be credited upon his or her term of imprisonment . . . ."
As noted above, defendant spent 295 actual days in custody under section 2900.5. However, based on the foregoing, defendant is only eligible for conduct credit under section 4019 for 125 of these days.
C. Calculation of Conduct Credits Under Amended Section 4019
Prior to an amendment effective January 25, 2010, section 4019 allowed a defendant to earn two days of presentence conduct credit for every four days in presentence custody. (Former § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, the Legislature amended section 4019 to provide for an increase in the amount of presentence conduct credits to four days for every four days in presentence custody. (Former § 4019, amended by Stats. 2009-2010, ch. 28, § 50.) Because the amended version of section 4019 was in effect at the time he was sentenced on July 23, 2010, defendant contends he is entitled to the increased conduct credits for all of the time he spent in presentence custody. The People argue that any credits defendant accrued prior to January 25, 2010, should be calculated at the rate provided in former section 4019, and only the credits accrued on or after January 25, 2010, should be calculated at the new, increased rate. The court's method for calculating defendant's section 4019 is unclear based on the record. The amendments to section 4019 were not discussed during the sentencing hearing. However, it appears from the minutes the court agreed with defendant's contention that he is entitled to the increased rate for all of his presentence custody credits. The minutes state as follows: "Previous credits were waived to participate in Drug Court. [¶] Credits from this day on are new PC4019."
We note that section 4019 was amended again effective September 28, 2010, to return to the accrual rate for presentence credits in effect prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) As of this writing, additional amendments to section 4019 are pending in the Legislature. The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Therefore, unless otherwise specified, any reference to section 4019, or the 2010 amendments to section 4019, concerns the amended version of section 2019 that became effective on January 25, 2010. Any reference to "former" section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
In People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314, we recently concluded the statutory amendments increasing section 4019 credits are not retroactive to defendants sentenced prior to January 25, 2010, the effective date of the amendments. Some appellate courts have reached a different conclusion. The issue is presently before our Supreme Court, which has granted review in this and other similar cases that have addressed the issue, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808. While we await guidance from the Supreme Court, we continue to agree with our reasoning and decision in Otubuah.
A "retroactive law" is "[a] legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect." (Black's Law Dict. (8th ed. 2004) p. 1343, col. 1.) By contrast, a "prospective statute" is "[a] law that applies to future events." (Black's Law Dict. (8th ed. 2004) p. 1449, col. 1.)
In this case, the facts and circumstances are distinguishable from those in Otubuah, because defendant was sentenced after the effective date of the amendments. Whether the increased rate of accrual for presentence custody credits in section 4019, effective January 25, 2011, applies to all or only some of the time defendant spent in custody prior to sentencing is a question of statutory construction. "'The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent.'" (People v. Jefferson (1999) 21 Cal.4th 86, 94.) A de novo standard of review is applied when the trial court's order turns on the interpretation of a statute. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1288.)
"Conduct credits for presentence custody are credited to the defendant's term of imprisonment 'in the discretion of the court imposing the sentence.' (Pen. Code, § 2900.5, subd. (a).) It is the duty of the sentencing court to determine 'the total number of days to be credited . . .' for presentence custody. (Pen. Code, § 2900.5, subd. (d); [citations]." (People v. Duesler (1988) 203 Cal.App.3d 273, 276.) "The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits." (Ibid.) "[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity" to be heard. (Id. at p. 277.) In sum, section 4019 credits are either withheld or granted at the discretion of the court at the time of sentencing
As of January 25, 2010, section 4019 read in part as follows: "(b)(1) . . . for each four-day period in which a prisoner is confined in or committed to a [jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned . . . . [¶] . . . [¶] (c)(1) . . . for each four-day period in which a prisoner is confined in or committed to a [jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established . . . . [¶] . . . [¶] (f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody . . . ."
We acknowledge the People's contention that there is some support in case law for the use of a dual formula to calculate an increase in credits. (In re Stinnette (1979) 94 Cal.App.3d 800; In re Strick (1983) 148 Cal.App.3d 906; In re Bender (1983) 149 Cal.App.3d 380.) However, these cases are distinguishable, because the applicable statutory amendments or enactments at issue expressly provided for the use of a dual formula. The amendments to section 4019 effective January 25, 2010, do not include any provision from which we could conclude the Legislature intended trial courts to award credits at two different rates depending on whether the time in custody was served before or after the effective date of the amendments. In other words, as written, the amendments do not limit a trial court's award of credits at the new, higher rate to days spent in custody after the January 25, 2010, effective date. Only the amended version of section 4019 was operative at the time defendant was sentenced on July 27, 2010. Without more, it is our view all of defendant's conduct credits should be calculated at the higher rate provided in the amended version of section 4019 effective January 25, 2010, because he was sentenced after the effective date of the amendments.
DISPOSITION
The judgment is modified to reflect 295 actual days in presentence custody. (§ 2900.5.) The judgment is also modified to reflect presentence conduct credits of 124 days based on the amendments to section 4019 effective January 25, 2010. (§ 4019, subd. (b)(1), (c)(1), (f).) The court is directed to correct the minutes and the abstract of judgment and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Pursuant to subdivision (f) of section 4019, credits are only given in increments of four days. (See, e.g., People v. Browning (1991) 233 Cal.App.3d 1410, 1413.)
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: KING
Acting P. J.
CODRINGTON
J.