Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. FVA701627, Phillip M. Morris and Jon D. Ferguson, Judges.
Retired judge of the former San Bernardino Municipal Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Pursuant to a plea agreement, defendant and appellant James Jammar Kelley pled guilty to carrying a loaded firearm while being a member of a street gang (Pen. Code, § 12031, subd. (a)(1), count 1) and being a felon while carrying a concealed firearm (§ 12025, subd. (a)(2), count 2). Defendant also admitted that count 2 was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)), as well as a prior conviction allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to eight years eight months in state prison, but stayed execution of the sentence pursuant to a Vargas waiver, which will be explained post. Subsequently, the court found that defendant violated the terms of the Vargas waiver and imposed the eight-year eight-month sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).
On appeal, defendant contends that reversal is required because: 1) the trial court violated his rights to a jury trial and to proof beyond a reasonable doubt when it determined that he violated the terms of his Vargas waiver; 2) he never waived his right to a jury finding of the Vargas waiver violation by proof beyond a reasonable doubt; and 3) he does not need a certificate of probable cause to appeal this matter because he is not challenging the validity of the plea agreement. Defendant also contends that he is entitled to one additional day of presentence custody credit. The People concede, and we agree, that he is entitled to an additional day of custody credit. We dismiss the remaining portion of the appeal due to defendant’s failure to obtain a certificate of probable cause.
PROCEDURAL AND FACTUAL BACKGROUND
On October 18, 2007, defendant entered a plea agreement and pled guilty to counts 1 and 2. As part of defendant’s plea agreement, the district attorney and defendant agreed that he would be sentenced pursuant to a Vargas waiver. The arrangements of the Vargas waiver were as follows: On the day of the guilty plea, the court would sentence defendant to the term of eight years eight months in state prison. The court would then stay execution of that sentence and defendant would be released. If defendant complied with the conditions set forth in paragraphs 16a through 16f of his plea agreement, as well as the agreement not to associate with gang members, then he would be resentenced to three years in state prison. Defendant’s Vargas waiver was defined in paragraph 17 of his plea agreement, and it incorporated by reference the conditions listed in paragraphs 16a through 16f. Paragraph 16 of defendant’s plea agreement was his Cruz waiver, which also mandated that he comply with the terms in paragraphs 16a through 16g. Specifically, paragraph 17 of the plea agreement stated: “Vargas Waiver (if applicable) I understand that I am being sentenced today pursuant to the initial terms stated in paragraph 9. If I comply with the conditions set forth in numbers 16a, 16b, 16c, 16d, 16e, and 16f, and any other terms as ordered, the court will resentence me pursuant to the remainder of the terms described in paragraph 9.” Paragraphs 16a through 16f listed various directives, and paragraph 16g stated: “If I violate any of the above conditions in paragraph 16a-16f, I then agree the court will no longer be bound by this plea bargain and I would not have any right to withdraw my plea. I further understand and agree that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence.”
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
The court released defendant on the Vargas waiver and ordered him to return to court for sentencing on November 30, 2007. Defendant appeared in court on that date. Defense counsel informed the court that defendant wanted to consider withdrawing his plea, and that defendant had a pending misdemeanor. The court continued the matter.
A Vargas violation hearing was held on January 23, 2008. Officer Aaron Vigil testified that he came into contact with defendant, who was hanging out with documented gang members on a few dates Officer Vigil could not exactly recall. Officer Vigil did remember that he observed defendant hanging out with such gang members sometime after October 18, 2007. The court found by a preponderance of the evidence that the People proved defendant was associating with gang members during the period of his release on the Vargas waiver. Thus, the court found defendant to be in violation.
ANALYSIS
I. Defendant Failed to Obtain a Certificate of Probable Cause
Defendant contends that his constitutional rights were violated because he was entitled, under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220, to have a jury determine whether he violated his Vargas waiver beyond a reasonable doubt. According to defendant, Blakely applies because the trial court’s determination as to whether he violated his Vargas waiver is the functional equivalent of deciding whether there are aggravating factors to justify imposing the greater sentence of eight years eight months.
This sentencing issue is not reviewable on appeal because defendant did not obtain a certificate of probable cause from the trial court. (Cal. Rules of Court, rule 8.304(b)(1); § 1237.5; People v. Carr (2006) 143 Cal.App.4th 786, 793 (Carr).) Defendant contends a certificate of probable cause is not required because he is challenging only the procedure by which the Vargas waiver violation hearing was conducted, not the validity of the plea. The specific procedure defendant is challenging is the determination by a judge by a preponderance of evidence that defendant willfully violated a condition of the Vargas waiver. In support of his position, defendant also argues that the provision for the determination to be made by a judge by a preponderance of evidence was not a part of the Vargas waiver. Defendant supports this assertion with the observation that the Vargas waiver expressly incorporates by reference the conditions in paragraphs 16a through 16f of the Cruz waiver, but does not mention paragraph 16g of the Cruz waiver, which contains how a Cruz waiver violation hearing would be conducted. Thus, defendant argues the Cruz waiver violation hearing procedure did not apply to the Vargas waiver violation hearing procedure. This court has previously rejected as “strained” defendant’s interpretation of the plea agreement. (Carr, supra, at p. 793.) Defendant’s explanation leaves the parties without any procedure for determining whether a Vargas violation occurred. Since the only provision regarding the manner of determining a violation was set forth in paragraph 16g, which defendant initialed, that provision would control the procedure in a Vargas waiver violation determination. Accordingly, defendant’s waiver of his rights to a jury trial and to proof beyond a reasonable doubt in paragraph 16g was implicitly incorporated into his Vargas waiver in paragraph 17. Moreover, defendant agreed to the consequences of violating the Vargas waiver, as contained in paragraph 16g, when he initialed that paragraph and accepted the plea agreement.
Furthermore, in Carr, this court concluded that if a defendant argues in his appeal that the trial court violated his right to a jury trial at a hearing concerning an alleged breach of the Vargas waiver conditions, then a defendant must first obtain a certificate of probable cause because he “is challenging the sentence which he negotiated as part of the plea bargain.” (Carr, supra, 143 Cal.App.4th at p. 794.) “‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause. [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.) In other words, defendant is attacking “an integral part of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and California Rules of Court, rule [8.304](b). [Citations.]” (Carr, supra, at p. 794.) Because defendant failed to adhere to these requirements, his attack on the validity of the plea is not reviewable on appeal. (Ibid.)
In any case, the violation of a Vargas waiver is the breach of an agreement, not a fact used to impose a higher sentence. The violation of the waiver provisions differs from a fact used to impose a higher sentence because of the different contexts—a voluntary plea agreement versus the making of factual findings to determine an involuntary, judge-imposed sentence. Here, the higher term had already been imposed by the court, pursuant to the agreement of the parties. As part of the same plea agreement, the parties had also agreed that compliance with the Vargas waiver conditions would result in the reduced sentence. Essentially, a trial court making a Vargas violation determination is not making a finding in aggravation or a discretionary sentencing choice. (See Carr, supra, 143 Cal.App.4th at p. 794.) Consequently, Blakely does not apply.
II. Defendant Is Entitled to an Additional Day of Custody Credits
Defendant contends that he is entitled to one additional day of custody credits because the probation department and court improperly awarded him only 17 days for the time he spent in custody between October 1, 2007 and October 18, 2007. The People correctly concede.
“‘Defendants sentenced to prison for criminal conduct are entitled to credit against their terms for all actual days of presentence and postsentence custody [citations].’ [Citation.]” (People v. Donan (2004) 117 Cal.App.4th 784, 789.) This calculation includes the day of sentencing, even if it is a partial day. (People v. Smith (1989) 211 Cal.App.3d 523, 526.)
At sentencing, the court credited defendant with 78 days of actual local time and 38 days of conduct credit, for a total custody credit of 116 days. This computation appears to incorporate custody calculations from a court memorandum prepared by the probation department and filed on January 10, 2008, which reflected that defendant was initially arrested on October 1, 2007, and released on October 18, 2007. The memorandum listed a total of 17 credits for that time period. However, there are 18 days between October 1 and October 18, which would entitle defendant to one additional day of custody credits. Therefore, the abstract of judgment should be amended to reflect a total of 117 total credits, rather than 116.
DISPOSITION
As to the portion of defendant’s argument concerning the Vargas waiver, that portion of defendant’s appeal is dismissed. As to the portion of defendant’s appeal concerning custody credits, the judgment is modified. The trial court is directed to amend the abstract of judgment to reflect 79 days of actual custody credits, and 117 total credits. The trial court is further directed to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GAUT J. KING J.