Opinion
A153019
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EUGENE HIRTLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC197221)
Appellant was convicted, pursuant to a plea agreement, of evading a peace officer and leaving the scene of an accident in a Napa County case. Subsequently, pursuant to a plea agreement in this (Marin County) case, appellant was convicted of first degree residential burglary, and the two cases were consolidated. On appeal, appellant contends the trial court erred when it denied his motion for 215 additional days of actual custody credits. He also argues that the court improperly imposed a subordinate, consecutive upper term on one of the counts in the Napa County case and that the abstract of judgment should be amended to reflect a midterm sentence on that count. We shall remand the matter to the trial court with directions to modify the abstract of judgment to include an additional 215 days of actual custody credits and to further modify the abstract of judgment, as well as an October 30, 2017 minute order, to reflect that appellant was sentenced to one-third the midterm on count 1 in the Napa County case. In all other respects, we shall affirm the judgment.
PROCEDURAL BACKGROUND
On May 17, 2016, the Marin County District Attorney filed a complaint in case No. SC197221, charging appellant with first degree residential burglary (Pen. Code, § 459—count 1). The complaint alleged that appellant had two prior prison terms (§ 667.5, subd. (b)) and four prior felony convictions (§ 1203, subd. (e)(4)).
All further statutory references are to the Penal Code unless otherwise indicated.
On October 27, 2016, the Napa County District Attorney filed a complaint in Case No. CR181400, charging appellant with evading a peace officer with willful disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)—count 1); leaving the scene of an accident (Veh. Code, § 20001, subd. (a)—count 2); resisting a peace officer (§ 148, subd. (a)(1)—count 3); and driving with a suspended license (§ 14061.1, subd. (a)—count 4). The complaint alleged that appellant had three prior prison terms (§ 667.5, subd. (b)).
On November 8, 2016, in the Napa County case, appellant pleaded no contest to count 1, evading a peace officer, and count 2, leaving the scene of an accident. In exchange for his plea, the other charges and allegations were dismissed. On December 27, 2016, the Napa County court sentenced appellant to the upper term of three years on count 1 and a consecutive one third the midterm—eight months—on count 2.
On October 4, 2017, in the Marin County case, appellant pleaded guilty to count 1, first degree residential burglary, and that case and the Napa County case were consolidated for sentencing. In exchange for his plea, it was agreed that the court would strike the special allegations and appellant would be sentenced to the middle term of four years in state prison in that case and resentenced to a consecutive, subordinate term of 16 months for the two Napa County convictions.
On October 30, 2017, the court sentenced appellant in the Marin County case to a four-year principal term and resentenced him in the Napa County case to a consecutive 16-month term, for a total of five years and four months in state prison.
On November 15, 2017, appellant filed a notice of appeal.
Because the facts underlying appellant's convictions are not relevant to the issues raised on appeal, we will not discuss them here.
DISCUSSION
I. Custody Credits
Appellant contends the court erred when it denied his motion for 215 additional days of actual custody credits, and respondent agrees.
A. Trial Court Background
On December 27, 2016, when the Napa County court sentenced appellant in case No. CR181400, it awarded him 63 days of custody credits and 62 days of conduct credits, for a total of 125 days of credits.
On October 4, 2017, appellant entered into the plea agreement in Marin County in case No. SC197221, at which time the Marin and Napa County cases were consolidated.
On October 26, 2017, following a discussion of appellant's credits in both cases, the court disagreed with the prosecutor and defense counsel's understanding that the credits should be calculated based on all time served, including the portion of appellant's prison sentence already served in the Napa County case. The court believed appellant "gets whatever credits he got on the Napa case on the day the judgment was imposed, whatever his credits are on the Marin County case, and then CDCR [California Department of Corrections and Rehabilitation] is charged with the responsibility of figuring out all the rest of it." The court, however, agreed to defense counsel's request to postpone sentencing to allow time to resolve the credit issue.
On October 30, 2017, defense counsel filed a motion requesting 215 additional days of actual custody credits for December 28, 2016, to July 30, 2017, the period between appellant's sentencing in Napa County and his arrival in custody in Marin County. On that same date, the court held appellant's sentencing hearing and again addressed the credit issue, stating that it would not grant those 215 days of actual custody credits: "There is, on the abstract of judgment, going to be a gap in time. The 215 actual days that [appellant] served . . . while he was in Napa, starting December 28th, 2016, until July 30th, 2017, that won't appear on the abstract of judgment, but it will be the CDCR's responsibility to apply those credits to the Napa case. But the court doesn't do that." The court then ordered a total of 189 days of custody credits, not including the 215 days in dispute, stating that the "CDCR is charged with the responsibility of calculating the balance of the credits."
B. Legal Analysis
Under section 2900.1, "[w]here a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is . . . modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (See also People v. Buckhalter (2001) 26 Cal.4th 20, 41 ["under section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or in prison, and awarded such credits in the new abstract of judgment"]; accord, People v. Saibu (2011) 191 Cal.App.4th 1005, 1012 (Saibu).)
In Saibu, the defendant argued that the trial court had erred when it failed to amend the abstract of judgment to reflect his custody credits for the days served in prison and county jail while he awaited resentencing after the judgment had been modified. (Saibu, supra, 191 Cal.App.4th at p. 1011.) The appellate court agreed, explaining: "Although Buckhalter is not directly on point because it concerns the modification of a defendant's sentence 'as a result of an appellate sentence remand [citation],' the same principles would apply when a trial court resentences a defendant pursuant to California Rules of Court, rule 4.452. Certainly, a court can be considered to have modified a defendant's original sentence when the court resentences that defendant . . . pursuant to rule 4.452. Therefore, under section 2900.1, which specifies that when a sentence is modified while in progress, the 'time' already served ' "shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts," ' the trial court should, ' "in its new abstract of judgment, . . . credit him with all actual days he had spent in custody, whether in jail or prison, up to that time' [citation]." (Saibu, at p. 1012, quoting Buckhalter, supra, 26 Cal.4th at p. 37.)
California Rules of Court, rule 4.452(3) addresses the procedure for combining current and prior sentences under section 1170.1. --------
In the present case, as in Saibu, appellant served part of his sentence in the Napa County case before the trial court sentenced him to an aggregate term in both the Napa and Marin County cases. The court should have granted appellant credits for the 215 days he spent in the custody of the CDCR following his sentencing in the Napa County case prior to his resentencing and should have recorded those credits in the new abstract of judgment. We shall therefore order the court to amend the abstract of judgment to reflect these credits. (See Saibu, supra, 191 Cal.App.4th at p. 1013 [directing trial court to amend abstract of judgment to reflect both presentence custody credits defendant had earned in second case and custody credits for days defendant had served in custody of CDCR in first case]; see also § 2900.1; § 2900.5, subds. (a) & (d).)
II. Subordinate Term in the Napa County Case
Appellant contends the court erred when it imposed a subordinate, consecutive upper term on count 1 in the Napa County case and further contends the abstract of judgment should be amended to reflect a midterm sentence on that count. Respondent disagrees that the court in fact imposed the upper term, but agrees the abstract of judgment must be corrected, and asserts that an October 30, 2017 minute order must also be corrected.
A. Trial Court Background
On December 27, 2016, the Napa County court sentenced appellant to the upper term of three years on count 1 and eight months, one-third the midterm, on count 2 in case No. CR181400.
Appellant's October 4, 2017 plea agreement in case No. SC197221A in Marin County provided as follows: "Plead Guilty to Count 1: [section] 459—Residential burglary; the [section] 667.5[, subdivision] (b) priors will be stricken[.] The defendant will be sentenced to the midterm of 4 years in State Prison as the principal term; Napa County case CR181400 will become the subordinate term and the defendant will be resentenced to 16 months for the [sections] 2800.2 and 20001 convictions; total state prison term is 5 years, 4 months[.]"
At the October 4, 2017 change of plea hearing, the court stated: "So just so I'm clear on what we're doing here, the defendant is going to be pleading guilty to Count 1, the [residential burglary]. He'll be sentenced to the midterm of four years, and each of the Napa County convictions—there's two on that abstract of judgment—each will become a subordinate term, and the defendant will be sentenced to a consecutive one-third the midterm of eight months for each count, okay?"
At the October 30, 2017 sentencing hearing, the court stated that it was going to sentence appellant "consistent with the plea bargain in this case," as follows: "Marin County Case No. SC197221A, Count I, will be the principal term in this case. The defendant is sentenced to the middle term of four years in State Prison on that count.
"The Napa County case, Count I, in Napa County Case CR181400, I will impose the—I'm sorry, hang on one second—the upper term, and that's the term that Napa imposed. [¶] However, by operation of law, [appellant] will serve one-third of the midterm, an eight-month consecutive term.
"In Count II, in Napa County Case CR181400, I'll impose the middle term. By operation of law, [appellant] will serve one-third of the middle term, another additional eight months in State Prison.
"All of these terms are to be consecutive with each other and consecutive to any other sentence.
"The total State Prison sentence imposed here is five years and four months." (Italics added.)
On October 30, 2017, the date of sentencing, the court also signed a minute order stating that appellant would be sentenced, consistent with the plea agreement, to five years and four months in state prison. The minute order referred to count 1 in the Napa County case, as follows: "Circumstances warrant aggravated term as imposed on 12/27/16 in Napa County," and, "pursuant to [section] 1170.1, 28 months stayed, 8 months imposed."
Finally, the abstract of judgment, filed on November 2, 2017, described count 1 from the Napa County case as a one-third consecutive upper term of eight months.
B. Legal Analysis
Section 1170.1 provides that "when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed . . . , the aggregate term of imprisonment for all these convictions shall be the sum of the principal term [and] the subordinate term . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . ." (§ 1170.1, subd. (a), italics added; see Saibu, supra, 191 Cal.App.4th at p. 1013 [abstract of judgment improperly stated that court had imposed upper term on two subordinate terms, in violation of section 1170.1].)
In this case, we agree with respondent that the reporter's transcript from the October 30, 2017 sentencing hearing reflects that the court properly sentenced appellant to one-third the midterm on count 1 in the Napa County case. Although the court noted that the Napa County court had imposed the upper term on count 1, it further noted that, "by operation of law, [appellant] will serve one-third of the midterm, an eight-month consecutive term" on that count.
We also agree with the parties, however, that the abstract of judgment incorrectly states that appellant was sentenced to the upper term on count 1 in the Napa County case and the October 30 minute order incorrectly states that appellant was sentenced to the aggravated term on count 1, with part of the term stayed in that case. We shall therefore order the abstract of judgment and minute order to be corrected to reflect that the court imposed a consecutive one-third midterm (eight months) on count 1 of the Napa County case, with no portion of that term stayed. (See In re Candelario (1970) 3 Cal.3d 702, 705 ["It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts"]; see Saibu, supra, 191 Cal.App.4th at p. 1005 [directing court to modify abstract of judgment to indicate that court imposed middle terms as to two counts].)
DISPOSITION
The matter is remanded to the trial court with directions to (1) modify the abstract of judgment to include an additional 215 days of actual custody credits, as discussed herein, and (2) modify the abstract of judgment and correct the October 30, 2017 minute order to reflect that appellant was sentenced to one-third the midterm in count 1 of the Napa County case, as discussed herein. In all other respects, the judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.