Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03CR4132
BLEASE, Acting P. J.
Defendant Dennis McGuire appeals from an order revoking probation granted after he pled guilty to one count of transporting heroin. (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 667.5.) The court imposed an aggregate prison term of five years and four months comprised of a three year prison term in the present case plus consecutive terms for sentences previously imposed by the trial courts in San Mateo and Santa Clara counties.
All further section references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that by imposing consecutive sentences, the trial court violated rule 4.452 of the California Rules of Court (hereafter rule), which prohibits one trial court from modifying the discretionary decision of another trial court, and violated his Sixth Amendment right to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). He further contends the trial court erred by refusing to calculate and apportion all presentence custody credits.
We agree with defendant that the trial court violated rule 4.452 when it imposed consecutive sentences and shall order that the abstract of judgment be amended to reflect an authorized sentence. In all other respects we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pled guilty, we take the pertinent facts from the probation report.
On January 15, 2002, while defendant was housed in the Mule Creek State Prison, he received a large manila envelope that emitted an unusual scent and bore a return address from the public defender’s office in San Francisco. Upon further inspection, it was determined that the envelope contained black tar heroin.
Defendant was charged with transportation of a controlled substance (Health & Saf. Code, § 11352), knowingly bringing a controlled substance into Mule Creek State Prison (§ 4573), attempt to possess a controlled substance while in Mule Creek State Prison, and four prior prison terms. (§§ 664/4573.6.) He initially pled guilty to transportation of a controlled substance (Health & Saf. Code, § 11352), admitted the four prior prison terms, was given a suspended prison sentence of nine years, and placed on probation. When the court subsequently found him to be in violation of probation, it imposed the nine-year sentence. Defendant appealed and on remand was allowed to withdraw his guilty plea. The instant proceedings followed.
Defendant entered a guilty plea to the transportation of a controlled substance (Health & Saf. Code, § 11352), was given a three-year suspended prison term with 1095 days credit, and placed on probation for four years.
A few months later, a petition to revoke his probation was filed alleging, inter alia, that he was convicted of one count of grand theft property (§ 484/487, subd. (a)) in San Mateo County and two counts of grand theft property (§ 484/487, subd. (a)) in Santa Clara County for acts committed while he was on probation.
The trial court found defendant was in violation of probation in that the allegations in the petition were true and revoked probation. The court sentenced him to an aggregate prison term of five years and four months after ordering that the San Mateo and Santa Clara sentences are to run consecutively with the sentence in the present case. The court also awarded defendant 1197 days of credit for time served.
DISCUSSION
I.
Defendant contends that by making the prior sentences consecutive to the sentence in the present case, the trial court made the San Mateo sentence consecutive to the Santa Clara sentence in violation of rule 4.452(3). Respondent contends the trial court properly ordered that the two prior sentences run consecutive to the sentence in the present case.
We agree with defendant and shall order that the abstract of judgment be amended to reflect the authorized sentence.
Respondent properly concedes that defendant may raise this claim notwithstanding the lack of objection below because it raises a claim that the sentence is unauthorized as a matter of law. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
On April 10, 2006, the San Mateo court sentenced defendant to a total prison term of three years (Case No. SC059802B), two years for grand theft (§ 487, subd. (a)) plus one year for a prior prison term. (§ 667.5, subd. (b).) On July 27, 2006, the Santa Clara court (Case No. BB517647) sentenced defendant to a prison term of 16 months each on two counts of grand theft (§ 487, subd. (a)) and specified that the terms were to run concurrently to each other and to the San Mateo sentence.
San Mateo County court records show that defendant was charged by information along with a co-defendant in Case Nos. SC059802A and SC059802B. All other San Mateo County court documents refer to defendant’s case as case No. SC059802B. It therefore appears that case No. SC059802B refers to defendant’s case while case No. SC059802A refers to his co-defendant’s case. Nevertheless, the Santa Clara court referred to defendant’s San Mateo case by the number “SC059802A.” We shall treat that designation as a clerical error.
The trial court in the present case, the Amador court, imposed an aggregate prison term of five years and four months after deciding to make the San Mateo sentence and the term on count two of the Santa Clara sentence consecutive to the Amador sentence. In so doing, it imposed three years for the Amador conviction; plus eight months (§ 487, subd. (a)) plus one year (§ 667.5, subd. (b)) for the San Mateo sentence; plus eight months on count two for the Santa Clara sentence. The Amador court left unmodified, the 16 month concurrent term imposed on count four by the Santa Clara court.
As a general rule, a sentence lawfully imposed may not be modified once a defendant is committed and execution of his sentence has begun. (People v. Bozeman (1984) 152 Cal.App.3d 504, 507.)
Section 1170.1, subdivision (a) creates an exception to this rule by providing 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 under Section 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements [including] . . . prior prison terms . . . . 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, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
Moreover, “when a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” (§ 669; italics added.)
Thus, when a subsequent court decides to run sentences previously imposed by another court consecutively with the current sentence, the subsequent court must combine the terms of all the sentences into a single “aggregate term of imprisonment.” (§ 1170.1, subd. (a); rule 4.452(1); In re Reeves (2005) 35 Cal.4th 765, 772.) In so doing, the court must recalculate the subordinate terms under the one-third rule (§ 1170.1, subd. (a)) by reducing the terms for both the conviction and any specified enhancements applicable to the subordinate term. Section 1170.1 therefore authorizes the subsequent court to modify a sentence previously imposed by a another court. (People v. Baker (2002) 144 Cal.App.4th 1320, 1328-1329; People v. Bozeman, supra, 152 Cal.App.3d at p. 507.)
While imposition of consecutive terms merge into a single aggregate term, concurrent terms do not merge with other terms of imprisonment. (In re Reeves, supra, 35 Cal.4th at p. 773.) Moreover, the sentencing court in a subsequent case may not change a prior sentencing court’s discretionary decision to make prior cases concurrent with or consecutive to each other. (Rule 4.452(3).)
Rule 4.452(3) provides that “[d]iscretionary decisions of the judges in the previous cases shall not be changed by the judge in the current case. Such decisions include the decision . . . making counts in prior cases concurrent with or consecutive to each other . . . .”
Thus, only a consecutive term may be modified pursuant to section 1170.1 and merged into a single prison term. Here, the Santa Clara court imposed 16 month terms on both counts and directed that they run concurrently to each other and to the sentence imposed by the San Mateo court. Thus, the Amador court could only order that the sentence in this case run consecutively to the San Mateo sentence. By ordering the term on count two in the Santa Clara case to run consecutively to the sentence in the present case, the Amador court modified that term and merged it into the aggregate term. This it could not do.
A concurrent term begins on the day it is imposed. It is not postponed until the completion of a prior term. It may therefore overlap a prior term to the extent service of the earlier sentence is not complete on the day the concurrent term begins. (People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3; People v. Quintero (2006) 135 Cal.App.4th 1152, 1156.)
The sentence must therefore be modified to an aggregate term of four years. Correctly calculated, the total term is three years for the Amador sentence, plus the subordinate term for the San Mateo sentence of eight months for grand theft (§ 487, subd. (a)) plus four months for the prior prison term. (§ 667.5, subd. (b).) The 16 month concurrent sentence imposed by the Santa Clara court as to both counts must remain concurrent. We shall therefore direct that the abstract of judgment be amended to reflect the correct sentence.
We note that while the trial court in this case made the San Mateo sentence the subordinate term, it imposed a full one year term for the prior prison term, erroneously failing to reduce it to four months under the one-third rule. (§ 1070.1, subd. (a).) Although neither party raises this error, an unauthorized sentence may be corrected whenever the error comes to the attention of the court. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.)
II.
Custody Credits
Defendant contends the trial court erred by failing to calculate and award the total number of custody credits earned prior to sentencing and to apportion those credits between the different phases of his incarceration in jail and prison. Respondent contends the trial court properly calculated and awarded all applicable time credits. We agree with respondent.
At the sentencing hearing, the trial court found defendant was entitled to receive 1095 days of total presentence credit in this case. Defendant argued that he was entitled to an additional 56 days of custody credits and 28 days of conduct credits for the time he spent in custody on the probation violation awaiting sentencing.
The trial court found he was not entitled to receive any additional presentence credit in this case because he was “on a CDC commitment” during that time-period. The court explained to defendant that the California Department of Corrections (CDC) would calculate, as part of his aggregate term, the number of custody credits he had actually served on the other two sentences.
The court awarded defendant 800 days of custody credit and 397 days of conduct credit, which included the 1095 days of presentence time in this case plus 102 days of presentence time awarded by the courts in San Mateo and Santa Clara counties. Defendant does not challenge the amount of these credits.
Penal Code section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)) “only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b), italics added.)
The Supreme Court has interpreted this language to mean that “a defendant cannot obtain credit for confinement prior to his sentence if he cannot prove the conduct which led to the sentence was a dispositive, or ‘but for,’ cause of the presentence custody.” (People v. Bruner (1995) 9 Cal.4th 1178, 1180.) So construed, section 2900.5 bars receipt of credit for time spent in jail awaiting disposition of criminal proceedings during a period when the defendant is also serving a prison sentence on another conviction. (In re Marquez (2003) 30 Cal.4th 14, 19; In re Joyner (1989) 48 Cal.3d 487, 492; In re Rojas (1979) 23 Cal.3d 152.)
Service of a sentence on a felony conviction commences upon the defendant’s delivery to the Director of the CDC (§ 2900, subd. (a); People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter)) and as stated, the “time thereafter served in an institution designated by the Director ‘shall be credited as service of the term of imprisonment.’” (§ 2900, subd. (c); Buckhalter, supra, at pp. 30-31.) Once a prison term commences, the CDC is responsible for calculating and applying any custody credits that have accrued between imposition of sentence and defendant’s physical delivery to CDC. (Buckhalter, supra, at p. 31.)
Here the trial court found that at the time defendant was awaiting sentencing in the present case, he was committed to CDC serving the San Mateo and Santa Clara sentences. Under those circumstances, the trial court properly declined to calculate or award him credit for time served during that period, advising him that the CDC will calculate the number of days of custody credits he has earned for that period.
The record shows that the San Mateo court imposed sentence on April 10, 2006, the Santa Clara court imposed sentence on July 27, 2006, and the trial court in the present case imposed sentence on November 8, 2006. While the record does not affirmatively show when defendant was physically delivered to the custody of the CDC, defendant does not dispute the trial court’s finding that he had been committed to the CDC prior to being sentenced in this case.
Nevertheless, relying on People v. Buckhalter, supra, defendant argues that when the trial court imposed consecutive sentences, it modified the other two sentences and in so doing, triggered a duty to recalculate his total custody credits and designate them on the abstract of judgment. We disagree.
In Buckhalter, supra, the Supreme Court held that under section 2900.1, a petitioner who has begun serving a state prison sentence that is reversed and remanded for resentencing, retains presentence status for credit accrual purposes. (26 Cal.4th at pp. 40-41.) In so holding, the court concluded that when “an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the ‘subsequent sentence.’” (26 Cal.4th at p. 23.)
Penal Code section 2900.1 provides that “[w]here a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which 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.”
Similarly, in In re Martinez (2003) 30 Cal.4th 29, 31, the Supreme Court considered the proper credit treatment of one who spends time in custody after his convictions have been reversed on appeal. In addressing this question, the court designated four distinct phases for analyzing a defendant’s credit history. Phase I represents the period from initial arrest to the initial sentencing hearing, Phase II represents the period from initial sentencing to reversal of the conviction, Phase III represents the period from appellate reversal to the second sentencing hearing, and Phase IV represents the period after the second and final sentencing. (Id. at p.32.)
The court in Martinez held that when the defendant is resentenced on appellate remand after reversal of his conviction, the trial court should clarify the date on which the petitioner’s custody commenced, but calculation of the actual days of conduct credits earned during Phase II and Phase IV should be left to prison officials. (30 Cal.4th at p. 37.)
These cases are inapposite because neither the San Mateo nor the Santa Clara sentences were modified after the judgment was reversed as invalid or modified. (§ 2900.1.) Since defendant was in the custody of the CDC serving sentences imposed in the other two cases while he was awaiting sentencing in this case, he is not entitled to receive credit for that time in this case. (§ 2900.5, subd. (b); In re Rojas (1979) 23 Cal.3d 152.) Although he is entitled to receive credit for that time as service on the other two sentences (§ 2900, subd. (c)), it is the CDC not the Amador court that has the duty to calculate those credits. We therefore reject his claims of error.
III.
Imposition of Consecutive Sentences Did Not Violate Defendant’s Sixth Amendment Right to a Jury Trial
In his opening brief, defendant contended that by imposing consecutive sentences, the trial court violated his Sixth Amendment right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]) and Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856]. In his reply brief, defendant correctly acknowledges that People v. Black (2007) 41 Cal.4th 799 (Black II), which was filed after his opening brief, holds to the contrary and is dispositive. He maintains his claim to preserve it for federal review.
In Black II, the California Supreme Court held that the Apprendi line of cases are inapplicable to the decision whether to run individual sentences consecutively or concurrently. (Black II, supra, 41 Cal.4th at p. 823.) We are bound by that decision (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455) and therefore reject the claim.
DISPOSITION
The clerk of the Superior Court is directed to amend the abstract of judgment to reflect an aggregate prison term of four years comprised of a principal term of three years in the present case, a consecutive subordinate term of eight months (Pen. Code, § 487, subd. (a)) plus four months (Pen. Code, § 667.5, subd. (b)) in San Mateo Superior Court Case No. SC059802B, and concurrent terms of 16 months on counts two and four in Santa Clara County Superior Court Case No. BB517647. The clerk shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: DAVIS, J., CANTIL-SAKAUYE, J.