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People v. Lewis

California Court of Appeals, Second District, Eighth Division
Apr 27, 2009
No. B203492 (Cal. Ct. App. Apr. 27, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA074566 Arthur Jean, Judge.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.


FLIER, J.

Appellant Brian D. Lewis was simultaneously (a) convicted of check forgery and second degree burglary in case No. NA074566 and (b) found in violation of probation in case Nos. BA199899 and BA257780. He contends: (1) The trial court committed prejudicial error when it failed to give him written notice of the probation violations. (2) There was insufficient evidence for the violation in case No. BA199899. (3) The court improperly imposed the high term on the probation violations without stating reasons, and may have incorrectly relied on behavior that came after the original grant of probation.

Respondent concedes that the concurrent sentence imposed in case No. BA199899 must be stricken, as there was insufficient evidence that appellant was still on probation in that case when the charges were filed in case No. NA074566.

At our request, both sides have submitted supplemental briefing on an issue regarding custody credits.

We strike the concurrent sentence in case No. BA199899, order modifications in appellant’s custody credits, and otherwise affirm.

PROCEDURAL HISTORY AND FACTS

In case No. NA074566 (sometimes referred to as the new case), appellant was charged with forgery (count 1) and second degree commercial burglary (count 2). The information also alleged two prior strike convictions, violations of Penal Code section 245, subdivision (a)(1) in 2000 (case No. BA199899) and 2004 (case No. BA257780). The probation violation proceedings arising from those two cases will sometimes be referred to as “the two probation cases.”

Subsequent code references are to the Penal Code unless otherwise stated.

On September 19, 2007, just before the jury trial was to begin in the new case, appellant said he wanted to dismiss counsel and proceed in propria persona. The trial court advised him that he could represent himself but would be better off with counsel. The court patiently explained that, in addition to appellant’s lack of legal experience, the potential penalties were serious, as appellant faced the penalty of the new case and also the penalty for violating probation on the two probation cases. Appellant thought he was currently on probation on only one of those cases. He definitely wanted to proceed without counsel. The court granted him pro. per. status and appointed his former counsel as standby counsel.

Following further discussion, appellant asked what his maximum sentence could be. The court said it was willing to strike one but not both of the prior strikes. If appellant went to trial, he could expect a sentence of six years, plus possible additional time for the two probation cases. If appellant was willing to plead to one of the counts in the new case and admit one of the strike priors, the court was willing to impose a sentence of four years and terminate probation on the probation cases. Appellant chose to go to trial. The issue of the prior convictions was bifurcated. Just before jury voir dire commenced, the court stated: “The record should reflect that the two probation violations are being heard concurrently.” (Italics added.)

The evidence at the trial showed: On February 15, 2007, appellant walked into a check cashing store and handed the teller a check for almost $600, made out to him. He also gave the teller his California identification, which included his photo and address. The check was purportedly issued by a company called “Creative Capers.” The two tellers who were working in the store suspected that the check was fraudulent. They had appellant sit down while they verified the check. They went into the office, telephoned Creative Capers, and learned that the company had not issued the check. They called the police and waited. Appellant became nervous and ran away, leaving behind the check and his identification.

After the jury retired to deliberate, the court again told appellant that if he were found guilty the court would strike one of the strikes. The court then explained that appellant had the right to have the jury determine whether the prior convictions were true. Appellant was not sure at that time if he wanted to admit the prior convictions. The court further stated that, as it listened to the evidence at the trial, it had been considering whether appellant was in violation in the two probation cases. It asked appellant if he had any evidence to offer regarding whether he was in violation. Appellant had no such evidence. Neither did the prosecutor. The court found appellant in violation on those cases. Appellant asked whether, if the jury found him innocent, he would still do “some time” for the violations. The court said that was possible, they had discussed that possibility when appellant chose to represent himself, and appellant’s former counsel had also explained that fact to him. Appellant responded, “I was actually told that maybe [counsel] should if I could ask him to handle that I didn’t know you would actually put it before me.” The court replied, “You are pro per on all three of these cases.” Appellant answered, “Okay.”

After the jury found appellant guilty in the new case, he gave up his right to a jury trial on the prior convictions. The court then proceeded with sentencing on the new case. It struck one of the strikes and imposed the high term of three years on count 1, doubled to six years for one strike. Count 2 was stayed pursuant to section 654. The court gave appellant 141 days of credit for time served, which was 95 days of actual custody credit and 46 days of conduct credit.

The prosecutor then recalled that appellant had waived jury on the prior convictions but had not admitted them. Evidence was introduced on the prior convictions, and the court found them to be true.

The court then imposed sentence on the two probation cases. It stated: “With respect to [case No.] BA257780, you are committed to prison high term, four years, 245(a)(1). Concurrent time. Same credits. [¶] With respect to [case No.] BA199899 you are committed to prison high term, four years, same credits, 245(a)(1). Concurrent time.”

DISCUSSION

1. Notice of the Violations

Under Morrissey v. Brewer (1972) 408 U.S. 471, 489, and Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 786, parolees and probationers at revocation proceedings are entitled to due process of law, which includes written notice of the claimed violation. There is no evidence in the record that appellant received written notice that he was charged with violating probation in the two probation cases. Appellant contends that the lack of written notice denied him due process of law. The contention lacks merit because, assuming there was no written notice, the error was harmless, as the court’s detailed explanations before the trial started gave appellant ample notice that he was facing violation of probation in the two probation cases, based on the evidence in the new case.

2. Sufficiency of the Evidence

Both sides agree that the concurrent four-year sentence imposed following revocation of probation in case No. BA199899 must be stricken due to insufficient evidence that appellant was still on probation in that case at the time he committed the offense in the new case.

3. The High Term on Case No. BA257780

Appellant contends that the high term was improperly selected for the concurrent four-year sentence imposed on the remaining probation violation, case No. BA257780, because the court stated no reasons for the high term and may have based the high term on behavior that occurred after the original grant of probation.

We infer from the court’s words at the sentencing hearing that it imposed the upper term in case No. BA257780 for the same reason it used for imposing the upper term on the new case, No. NA074566: appellant’s record of prior convictions. (See People v. Black (2007) 41 Cal.4th 799, 816.)

Appellant did not object to imposition of the upper term or to the court’s failure to state reasons. Assuming arguendo that the issue was preserved (but see People v. Scott (1994) 9 Cal.4th 331, 353 ), it lacks merit. The record contains a minute order showing that appellant was placed on probation in case No. BA257780 on October 18, 2004. The list of appellant’s crimes in the probation report in the new case, No. NA074566, shows that he already had a lengthy criminal record on October 18, 2004. We therefore conclude that the trial court appropriately imposed the upper term for the probation violation in case No. BA257780.

4. Custody Credits

The revocation hearing on the two probation cases was held concurrently with the trial on the new case, No. NA074566. At the sentencing hearing on September 21, 2007, the bailiff said that appellant was arrested on June 19, 2007. When it imposed sentence on the new case, the court awarded 141 total days of custody credit, consisting of 95 days of actual custody credit and 46 days of conduct credit. It also imposed concurrent sentences on the two probation cases, Nos. BA199899 and BA257780. It gave appellant the “same credits” on those cases as on the new case.

After we reviewed the record we requested supplemental briefing on this issue: “On October 18, 2004, when sentence was suspended and appellant was placed on probation in case No. BA257780, he was awarded 466 days of total custody credits. (Clerk’s Transcript, p. 73.) On September 21, 2007, when the court sentenced appellant for violating probation in that case, it gave him 141 days of custody credit for it. (Reporter’s Transcript, pp. 94-95.) If the probation violation is affirmed, should 466 more days of credit be added to the sentence?”

The 466 days of total custody credits consist of 311 days of actual custody credit and 155 days of conduct credit.

In the supplemental briefing, the parties agree that appellant is entitled to those 466 days of credit in case No. BA257780.

Respondent’s supplemental briefing also contends that appellant was improperly awarded 141 days of credit in case No. BA257780 for the period he spent in jail between his arrest on June 19, 2007, and his sentencing on all three cases on September 21, 2007. According to respondent, appellant’s incarceration at that time arose from the new case and not the probation violation cases.

Section 2900.5 states, in pertinent part: “(a) In all felony... convictions,... when the defendant has been in custody,... all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019 [conduct credits], shall be credited upon his or her term of imprisonment.... [¶] (b) For the purpose of this section, 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.” (Italics added.)

There has been considerable litigation about the meaning of section 2900.5, subdivision (b) (see 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 391, pp. 523-524).

Appellant maintains that he was properly awarded the 141 days of custody credit in case No. BA257780, for the period between June 19, 2007, and September 21, 2007. He argues that his commission of the new crime in 2007 was “the same conduct” (§ 2900.5, subd. (b)) that caused him to be incarcerated on the new case and on the two probation revocation cases, as “the restraint would not have occurred but for the current crime[] alone.” (People v. Bruner (1995) 9 Cal.4th 1178, 1180; see also In re Joyner (1989) 48 Cal.3d 487, 489; In re Nickles (1991) 231 Cal.App.3d 415, 423.)

We checked the superior court file in case No. BA257780. A minute order in that file states that probation was revoked on September 19, 2007. Thus, appellant’s custody between June 19, 2007 and September 19, 2007, was only attributable to the new case and not to case No. BA257780. He was, however, entitled to three days of actual custody credit in case No. BA257780, from September 19, 2007 (the date his probation was revoked) to September 21, 2007 (the date he was sentenced on this case), rather than the 141 days he was given.

To determine appellant’s total credits, we start with the 311 days of actual custody credit, (see fn. 2, ante), and add the 3 additional days of actual custody credit from the time his probation was revoked as a result of this case, for a total of 314 days of actual custody credit. We then apply the section 4019 statutory formula to determine appellant’s conduct credits: Appellant’s actual custody days divided by 4 equals 78.5 (314/4 = 78.5). We discard the remainder (0.5) and double that number, giving us a total of 156 days (78 x 2 = 156) of conduct credit. (In re Marquez (2003) 30 Cal.4th 14, 25-26.) Adding the actual custody credit to the conduct credit, we determine appellant is entitled to a total of 470 days of credit (314 +156 = 470) in case No. BA257780.

Respondent’s supplemental briefing also has this footnote, regarding the 141 days of credit appellant was given for his incarceration on this case in 2007: “The custody credits are based on 95 days served and 46 days of conduct credits. (1 RT 94.) Respondent notes that on the date of sentencing, appellant had actually served 94 days, not 95 days. (June 19, 2007 to September 21, 2007 is 94 days.) Therefore, the correct number of credits appellant should have received was 140 days.” It appears to us, however, that appellant was awarded the correct credit for his days of actual custody. (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124.)

DISPOSITION

The concurrent four-year sentence imposed following revocation of probation in case No. BA199899 is stricken. The abstract of judgment for case No. BA257780 shall be modified to show 314 days of actual custody credit and 156 days of conduct credit, for a total of 470 days of credit for time served. The clerk of the Los Angeles Superior Court is directed to send a copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: RUBIN, ACTING P. J. BIGELOW, J.


Summaries of

People v. Lewis

California Court of Appeals, Second District, Eighth Division
Apr 27, 2009
No. B203492 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Lewis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRIAN D. LEWIS, Defendant and…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Apr 27, 2009

Citations

No. B203492 (Cal. Ct. App. Apr. 27, 2009)