Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC770824
Premo, J.
Defendant Robert William LaBouve appeals from a judgment entered after pleading guilty to one felony count of grand theft (Pen. Code, § 487, count 1), one felony count of petty theft with a prior conviction (§ 666, count 2) and one count of commercial burglary (§ 459, count 3). After initially pleading not guilty to the charges, LaBouve subsequently accepted a plea bargain in which he agreed to, in exchange for a maximum sentence of 32 months, plead guilty to all three counts, as well as admit the special allegations that he had one prior felony “strike” conviction and three prison priors. (§§ 667, subds. (b)–(i), 1170.12, 667.5 subd. (b).) At sentencing, the trial court denied LaBouve’s Romero motion and sentenced him to a term of 32 months in prison on count 1 to run concurrently with a 32 month sentence on count 3.
All further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
LaBouve was also sentenced to 32 months on count 2, but that sentence was stayed pursuant to section 654. The trial court also struck the three year sentence for LaBouve’s prison priors pursuant to section 1385.
We appointed counsel to represent LaBouve in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified LaBouve of his right to submit written argument in his own behalf within 30 days. We received two supplemental letter briefs from LaBouve which were received by the court on September 24 and September 26, 2008. In his briefs, LaBouve contends he was not given credit for time served in the county jail. LaBouve asserts that he entered into a plea bargain with the understanding that the 12 month sentence he would receive on his parole violation would run concurrent with the 32 month sentence on the theft charges. He also suggests that one of the grounds alleged as a parole violation, namely his failure to participate in the parole outpatient clinic, was untrue since his participation in that clinic was not a part of his parole conditions.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal. We will affirm the judgment, but note that LaBouve may proceed by way of petition for writ of habeas corpus on his claims.
I. Factual and Procedural Background
We derive the facts from the probation report and other papers in the clerk’s transcript.
At approximately 8:15 a.m. on June 22, 2007, LaBouve entered a department store in San Jose. He placed merchandise in a shopping cart and went to the garden exit area of the store. When a store employee asked LaBouve for a receipt, he fled with the cart and merchandise across the parking lot and into a creek area. LaBouve was located and arrested the same day. The total value of items taken, including the shopping cart, was $572.97.
LaBouve was also charged with violating parole due to the instant offense, for failing to report to parole, failing to participate in parole outpatient clinic and violating special conditions of parole by failing to attend a batterer’s program. On July 10, 2007, LaBouve signed an optional waiver and was assessed a sentence of 12 months for his parole violation, with a start date of June 22, 2007 and a projected release date of June 22, 2008. The probation report notes that the parole violation involved “mixed conduct,” and thus LaBouve was not entitled to dual credits in relation to the instant offense.
At the December 11, 2007 change of plea hearing, the trial court recited the terms of the agreement as follows: “[I]f you enter pleas of guilty or no contest to all the charges, I’ll impose a sentence that will not exceed initially more than 32 months in State prison.” The court then cautioned LaBouve that he could end up receiving a greater sentence if his Romero motion were granted, since the court could then sentence LaBouve to probation instead of prison time. If LaBouve then violated probation, he could receive three years for one of the underlying offenses, plus three years for his prison priors, for a total of six years. At no point during the change of plea hearing was the issue of custody credits discussed, nor was there any discussion of LaBouve’s 12 month sentence for violating parole.
At the sentencing hearing on June 9, 2008, LaBouve’s counsel advised the trial court that LaBouve believed that his 12 month sentence for violating parole was to run concurrent with his 32 month sentence for the instant offense. Defense counsel asked for a short continuance to check with the parole office, and the trial court began to discuss alternative dates for sentencing with the prosecutor and the probation department’s representative. Before a new date for sentencing was selected, however, the probation department’s representative asked to go off the record. The transcript notes that the “matter was passed briefly.” When the trial court went back on the record, it immediately asked if there was any legal cause why sentence should not be pronounced, to which LaBouve’s counsel responded, “No, Your Honor.” The trial court then sentenced LaBouve to 32 months in prison and awarded him credits of 48 days, consisting of 32 days, plus 16 days under section 4019. There was no further discussion of LaBouve’s “understanding” that his 12 month sentence for violating parole would run concurrent with his sentence in the instant case, or that he was somehow entitled to custody credits.
When a defendant enters a guilty plea in exchange for specified benefits, such as for an agreed maximum punishment, both the defendant and the prosecutor must abide by the agreement’s terms. (People v. Walker (1991) 54 Cal.3d1013, 1024.) If a plea rests in any significant degree on a promise or agreement of the parties so that it can be said to be part of the inducement or consideration, the promise must be fulfilled. (Ibid.) In assessing whether there has been a violation of a plea agreement, the reviewing court should consider whether the challenged term was within the “defendant’s contemplation and knowledge” when he entered into the plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 86.) As this court has stated, courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties and should seek to carry out the parties’ reasonable expectations. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1384; cf. People v. Sorenson (2005) 125 Cal.App.4th 612, 619.)
A defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. (§ 2900.5, subd. (a).) However, “credit 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.” (Id. subd. (b).) In People v. Bruner (1995) 9 Cal.4th 1178, the court explained that “where 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. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was ‘a’ basis for the revocation matter as well.” (Id. at pp. 1193-1194.) The court approved of decisions applying the general rule “that a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. Thus, these cases reason, his criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode.” (Id. at p. 1191.)
Although LaBouve suggests in his letter briefs that the trial court said he would get his custody credits if he pled guilty to the theft charges, there is nothing in the record to support his claim that this was part of the plea agreement. There is no evidence whatsoever that the court or prosecutor induced the change of plea by promising LaBouve that his time in custody would be reduced by an additional 12 months. Furthermore, given that LaBouve’s parole violation was based on “mixed conduct,” it seems unlikely that the trial court or the prosecutor would have agreed to give him custody credits for the 12 month parole violation sentence. Even if it were true that LaBouve’s parole conditions did not include a requirement that he participate in parole outpatient clinic, the probation report indicates that LaBouve was also charged with violating parole by failing to report to parole and failing to attend a batterer’s program. LaBouve even admitted failing to report to parole, stating that he was working with his father at the time and that he “tried [his] best with parole.”
This is yet another claim which cannot be evaluated on the record, since the clerk’s transcript does not include the parole conditions previously imposed on LaBouve.
As to the claims that LaBouve was promised, at the hearing on his parole violation, that his 12 month sentence would run concurrent to his 32 month sentence, the record does not reflect the basis for those claims. We have no record of the proceedings before the Board of Parole Hearings and thus cannot ascertain whether there is any basis for this contention. Consequently, LaBouve’s complaints are more appropriately made in a petition for habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
II. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.