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People v. McKinnie

California Court of Appeals, Third District, Sacramento
Mar 26, 2008
No. C055736 (Cal. Ct. App. Mar. 26, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CHARLES MCKINNIE, Defendant and Appellant. C055736 California Court of Appeal, Third District, Sacramento March 26, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 06F05272

SCOTLAND, P.J.

After his motion to suppress evidence was denied, defendant Christopher Charles McKinnie entered a negotiated plea of no contest to receiving stolen property on or about June 15, 2006, and admitted having a prior serious felony conviction. The trial court sentenced him to a stipulated term of two years and eight months in prison.

On appeal, defendant contends the trial court should have granted his motion to suppress the fruits of a parole search that was conducted after the expiration of his term of parole. We shall affirm the judgment.

BACKGROUND

On September 15, 1995, following his conviction for first degree murder, defendant was sentenced to a prison term of 25 years to life and committed to custody of the California Department of Corrections and Rehabilitation (CDCR). Before entering prison, he had earned 1,914 days of presentence credit (1,276 days of custody credit and 638 days of conduct credit). According to the testimony of a CDCR official, the 1,914 days of presentence credit were included in the abstract of judgment for the murder conviction.

Defendant’s murder conviction was eventually reversed, and on December 10, 2004, he pled guilty to voluntary manslaughter and was sentenced to 16 years and four months in prison. On the abstract of judgment for the manslaughter conviction, prepared by the deputy court clerk for Judge Michael Kenny, who imposed sentence, the boxes reflecting credit for time served prior to sentencing, including actual presentence custody credit and local conduct credit, were left blank except for the trial court case number. The “Other orders (specify)” section of the abstract contained the following entry: “CDC to calculate credits. Previously ordered restitution of $3,000 to William Harris, III.”

Records of CDCR’s Division of Adult Parole Operations reflect that defendant was released from prison on December 22, 2004, and placed on parole for a period of three years. Using the abstract of judgment, CDCR calculated his custody credits for the time that defendant was in CDCR’s custody, but did not include any presentence custody and conduct credit because it was not in the abstract for the voluntary manslaughter conviction. Thus, CDCR determined that defendant’s parole would end on March 27, 2007.

Based on defendant’s file indicating the March 2007 discharge date, his parole agent conducted a parole search of defendant’s residence on June 15, 2006. The search revealed marijuana, cocaine, and a stolen car in defendant’s garage.

Defendant moved to suppress the evidence on the ground that, in light of his entitlement to presentence custody and conduct credits, his period of parole had expired prior to June 15, 2006, and thus he was not subject to a warrant less parole search.

The trial court, Judge David DeAlba, agreed that the term of parole had expired prior to the search because defendant’s presentence credits added to the time he served in state prison exceeded the sum of his prison commitment and period of parole. Consequently, the warrant less search violated the Fourth Amendment. However, the court ruled the failure to credit defendant for his presentence custody was the fault of the judicial system, not CDCR. Concluding that the purpose of the exclusionary rule would not be served by applying it where the search was based on judicial error, the court denied defendant’s motion to suppress the evidence.

DISCUSSION

Defendant asserts the evidence should have been suppressed because, in his view, CDCR “was responsible, at least in part,” for the miscalculation of his term of parole; thus, the exclusionary rule should apply because CDCR is “an adjunct of law enforcement.”

Defendant concedes it was Judge Kenny’s duty to calculate presentence credits and include them in the voluntary manslaughter abstract of judgment. (Pen. Code, §§ 2900.1, 2900.5, subds. (d), (e); further section references are to the Penal Code.) However, seizing on Judge Kenny’s order directing CDCR “to calculate credits,” defendant contends CDCR “erred either in not correctly calculating all credits, or in not alerting the court it was [the court’s] duty to calculate all presentence and post[]sentence credits.” We disagree for reasons that follow.

Section 2900.5, subdivision (d) states: “It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section [which provides that actual days of presentence custody, plus extra days awarded based on good conduct (§§ 2933.1, 4019), shall be credited against the period of confinement ordered to be served in state prison]. The total number of days to be credited shall be contained in the abstract of judgment . . . .”

Penal Code section 2900.5, subdivision (a), in relevant part provides as follows: “If the total number of days in custody exceeds the number of days of the term of imprisonment . . . the entire term of imprisonment shall be deemed to have been served.” Subdivision (c) provides that “‘term of imprisonment’ includes . . . any period of imprisonment and parole, prior to discharge . . . .”

In a well-articulated ruling, Judge David DeAlba astutely reasoned the exclusionary rule does not apply to the circumstances of this case and, thus, defendant’s motion to suppress evidence fails. Judge DeAlba explained: (1) “[t]he exclusionary rule is a remedial device. Its application is restricted to those situations in which its remedial purpose is effectively advanced”; (2) that purpose is “to deter police error or misconduct rather than to punish the errors of judges or court clerks”; (3) here, the error “was created by the Court,” not by an employee of CDCR or a law enforcement officer; (4) because the parole agent’s reliance on the “erroneous information [on the abstract of judgment prepared by the court] was subjectively reasonable,” “penalizing [the parole agent] for the Court’s error cannot logically contribute to the deterrence of Fourth Amendment violations”; hence, (5) “the good faith exception to the exclusionary rule” applies because “imposition of the severe sanction of exclusion [of the evidence of defendant’s crime] would be contrary to the effect and purpose of the exclusionary rule.”

Judge DeAlba’s legal conclusion is consistent with long-standing decisions of the United States Supreme Court that created and have applied the good faith exception to the exclusionary rule. (See Arizona v. Evans (1995) 514 U.S. 1, 10-16 [131 L.Ed.2d 34, 43-47].) The exclusionary rule was designed to deter police misconduct. (Id. at p. 11 [131 L.Ed.2d at p. 44].) “As with any remedial device, the rule’s application has been restricted to those instances where its remedial objectives are thought most efficaciously served.” (Ibid.) Where the rule “‘does not result in appreciable deterrence, then, clearly, its use . . . is unwarranted.’ [Citation.]” (Ibid.) Consequently, where a law enforcement officer “acted in objectively reasonable reliance” on a court order as the basis to conduct a search, “there was no sound reason to apply the exclusionary rule.” (Ibid.) This is so because the exclusionary rule was “designed ‘“to deter police misconduct rather than to punish the errors of judges and magistrates.”’ [Citation.]” (Ibid.) In sum, courts should not suppress evidence seized based upon a law enforcement officer’s good faith reliance on a judge’s legal determination that permits the seizure, because to do otherwise would not serve the remedial purpose of the exclusionary rule.

This is such a circumstance where the good faith exception to the exclusionary rule should apply and the evidence should not be suppressed.

By statute, it was Judge Kenny’s responsibility, not that of CDCR, to determine defendant’s presentence credits and record them in the abstract of judgment. (§§ 2900.5, subd. (d), 2933.1, 4019.) The statutory scheme imposes on CDCR only the responsibility to calculate and apply custody and conduct credits for the period between the date that the defendant is sentenced and the date that he or she is delivered to CDCR (§ 2900.5, subd. (e)) and for the period in which the defendant is confined in a CDCR facility. (In re Martinez (2003) 30 Cal.4th 29, 32, 37; People v. Buckhalter (2001) 26 Cal.4th 20, 30-31, 40-41.)

The abstract of judgment for defendant’s voluntary manslaughter conviction left blank the box for presentence custody and conduct credits. Therefore, CDCR was entitled to presume that Judge Kenny determined that defendant was not entitled to any presentence custody and conduct credits. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 [“‘The general rule is that a trial court is presumed to have been aware of and followed the applicable law’”].) The fact that, under “[o]ther orders,” the abstract of judgment stated “CDC[R] to calculate credits” cannot be interpreted to have required CDCR to calculate presentence custody and conduct credits. That is the responsibility of the trial court alone that cannot be delegated to CDCR. (§§ 2900.5, subd. (d), 2933.1, 4019.) Moreover, unlike the trial court, CDCR does not have ready access to the data necessary to calculate those credits. Thus, the abstract’s directive that CDCR calculate credits would reasonably be interpreted by CDCR to refer to its statutory duty to calculate credits for the period between the date that defendant was sentenced and the date that he was delivered to CDCR (§ 2900.5, subd. (e)) and for the period in which he was confined in a CDCR facility.

Our dissenting colleague believes that the fact the box was left blank could not have been interpreted by CDCR to mean defendant was not entitled to any presentence custody credits as to his voluntary manslaughter conviction. If this were the case, the dissent suggests, “the entry would have been ‘zero’ or ‘none.” But the dissent offers no authority for the proposition that when a defendant receives no such credits, the judge must, or would, enter “zero” or “none” in the box, as opposed to simply leaving it blank. CDCR would reasonably conclude that no entry means no credits.

Section 2900.5, subdivision (d) provides that “[i]t shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.” This plainly refers to but a single sentencing and, as noted, refers only to the “calculation” of credits contrary to section 2900.1, which establishes the credits as those already served under a term of imprisonment. In this case there is nothing to be “determined” or calculated.

Our dissenting colleague disagrees, asserting that “under section 2900.1 there was nothing for the re commitment judge (Kenny) to ‘determine’ regarding the initial sentence. That had already been done by the first judge and shown in the initial abstract of judgment pursuant to section 2900.5, incident to the initial sentence for first degree murder.” (Dis. opn. post, at p. 6, fn. omitted.) Thus, the dissent concludes, although “it would have been better for the sake of clarity for [Judge Kenny] to have copied the presentence credits from the first abstract of judgment to the second abstract of judgment,” he “did not do so; rather he directed the CDCR to do so, necessarily implicating the provisions of section 2900.1 Hence the CDCR was on notice that it had that task.” (Dis. opn. post at p. 6.) Our dissenting colleague’s conclusion is flawed.

Section 2900.1 states 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.” This section does not address the issue of who has the duty to determine how many presentence custody credits have accrued. And it does not preclude a defendant from waiving, as a part of a plea agreement, the presentence custody credits he previously earned. Indeed, the waiver of such credits is a permissible condition of a negotiated plea. (People v. Johnson (2002) 28 Cal.4th 1050, 1054.)

Consequently, section 2900.1 cannot be interpreted to absolve Judge Kenny of the duty of calculating the presentence custody credit to which defendant was entitled regarding his voluntary manslaughter conviction and, instead, to impose that duty on CDCR. Section 2900.1 simply says that, unless such credits were waived as part of a plea agreement, defendant was entitled to have the credits applied to his subsequent voluntary manslaughter commitment.

And, despite the dissent’s claim otherwise, CDCR regulations do not require CDCR to calculate all the credits to which an inmate is entitled pursuant to sections 2900.1 and 2900.5. The only credits that CDCR must calculate are those for the period between the date a defendant is sentenced and the date he or she is delivered to CDCR (§ 2900.5, subd. (e)) and for the period in which the defendant is confined in a CDCR facility. (In re Martinez, supra, 30 Cal.4th at pp. 32, 37; People v. Buckhalter, supra, 26 Cal.4th at pp. 30-31, 40-41.) CDCR must rely on the sentencing court’s calculation of any other credits.

It was apparent to CDCR that after defendant was convicted and sentenced to 25 years to life for first degree murder, the judgment was set aside, and defendant entered into a negotiated plea to the lesser offense of voluntary manslaughter with a sentence much more favorable to him. Other than relying on the new abstract of judgment for the voluntary manslaughter conviction, CDCR was not in a position to know whether the plea bargain included the waiver of presentence custody credits that defendant had previously earned.

Thus, CDCR could not presume defendant was entitled to credits he had received for the murder conviction which was set aside and then reduced to manslaughter via a plea agreement. Instead, CDCR acted reasonably in presuming that the abstract meant what it said--there were no presentence custody credits to which he was entitled by virtue of the plea agreement. Indeed, to do what the dissent says CDCR should have done (apply the credits reflected on the murder abstract), CDCR would have risked thwarting a plea agreement that may have waived such credits in order to obtain a conviction for a lesser offense than first degree murder. Moreover, CDCR had no authority to calculate such credits; that was the sole duty of the trial court. (§ 2900.5, subd. (d).)

Because the voluntary manslaughter abstract of judgment did not include anything in the box for presentence custody and conduct credits, the fact that the abstract, under “[o]ther orders,” directed CDCR to “calculate credits” does not imply, as the dissent believes, that there really were presentence custody credits and that CDCR should ascertain and apply them. On its face, this “other order” did nothing more than direct CDCR to do what the statutes required it to do, i.e., calculate the credits to which defendant was entitled for the period between the date defendant was sentenced and the date he was delivered to CDCR, and for the period in which he was confined in a CDCR facility. (See discussion, infra.)

We reiterate. Because the abstract of judgment for defendant’s voluntary manslaughter conviction left blank the box for presentence custody and conduct credits, CDCR was entitled to presume Judge Kenny determined that defendant was not entitled to any presentence custody and conduct credit applied with respect to his voluntary manslaughter conviction and sentence.

Accordingly, as Judge DeAlba properly found, the error that resulted in the search and seizure “was created by the Court,” i.e., Judge Kenny, and not by CDCR or a law enforcement officer. Because CDCR acted reasonably in presuming that the voluntary manslaughter abstract of judgment correctly reflected defendant was not entitled to any presentence custody and conduct credits (and thus he was still on parole at the time of the parole search), the good faith exception to the exclusionary rule applies. “Penalizing the officer for the [judge’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” (United States v. Leon (1984)468 U.S. 897, 921 [82 L.Ed.2d 677, 697].)

For all of the reasons stated above, the trial court correctly denied defendant’s motion to suppress evidence.

DISPOSITION

The judgment is affirmed.

I concur: DAVIS, J.

I dissent. BLEASE, J.

The sole issue in this appeal is whether the California Department of Corrections and Rehabilitation (CDCR) was responsible for the failure to include presentence credits of over five years (1,914 days) for time served in the county jail prior to defendant’s conviction for first degree murder in computing the credits to be deducted from his resentence for voluntary manslaughter (and burglary) entered following the reversal of his initial conviction.

The majority opinion holds that the CDCR had no duty to include the five years of presentence credit in computing the defendant’s sentence for manslaughter, including the period of parole. If that had been done, the “term of imprisonment” for manslaughter, which includes the period of parole, would have been completed prior to the date of re sentencing for that offense.1

In so holding the majority opinion misreads the requirement of Penal Code section 2900.1, that any service on a sentence on an invalid judgment must be credited upon any “subsequent sentence . . . upon a new commitment for the same criminal act or acts.” Critically, it fails to consider the CDCR’s duty, under its regulations, to include the presentence credits attributable to section 2900.1 in determining defendant’s “term of imprisonment” on the manslaughter conviction.

In this case there are two judgments. The abstract of the first judgment, which is contained in the defendant’s CDCR C-file, from which the Correctional Case Records Manager for the CDCR was able to find the presentence credits at issue in this case as calculated by the initial sentencing judge. “Q. And is there any record in the file of how much credit he had from a local institution, Sacramento County Jail?” “A. Yes, there is on the abstract.”

When the initial judgment was reversed on appeal the defendant pleaded guilty inter alia to voluntary manslaughter. On re sentencing the trial judge filed a second abstract of judgment which left the box labeled “credit for time served” blank and ordered [under “Other orders”] the “CDC to calculate credits.” The significance of the blank box does not mean that defendant waived time for all presentence credits, as the majority opinion would have it, for in that case the entry would have been “zero“ or “none.”

The majority opinion, relying on the provisions of section 2900.5, subdivisions (d) and (e), places the sole responsibility for the error on the second court’s failure to put a number in the box for “credit for time served.” It says: “By statute, it was Judge Kenny’s [the second judge] responsibility, not that of CDCR, to determine defendant’s presentence credits [prior to the initial commitment] and record them in the [second] abstract of judgment.” (Maj. opn. at p. 6.) That assumes that section 2900.5, subdivision (d), refers to both the initial sentencing and the subsequent sentencing, contrary to its separate treatment in section 2900.1.2Accordingly, the majority opinion wholly absolves the CDCR of any responsibility for excluding five years of presentence credits shown on the first abstract of judgment in its files; an abstract it had a duty in this case to consult under the applicable law.

This is where the majority opinion goes wrong. The circulating majority opinion misreads Penal Code section 2900.1 and fails to consider the CDCR regulations which govern release on parole. Of critical importance the CDCR is under a duty under its regulations to calculate defendant’s term of imprisonment pursuant to section 2900.1, for purposes of release and parole on the manslaughter conviction and that cannot be done without inclusion of the presentence credits contained in the first abstract of judgment in the files.

Section 2900.1 provides that “[w]here a defendant has served any portion of his sentence under a commitment based upon a judgment which . . . is subsequently declared invalid . . . such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” In this section the phase “served any portion of his sentence based upon” an invalid judgment necessarily refers to the sentence served upon the initial conviction, calculated pursuant to section 2900.5. Consequently, it includes not only the time in prison served on the invalid commitment but also the presentence time served and entered on the initial abstract of judgment. Thus, section 2900.1 says that credits “based upon” an invalid judgment, necessarily including any presentence credits accrued toward the sentence, shall be applied to any commitment following retrial. In fact, it would violate the equal protection clause to “den[y] all conduct credit due to the initial conviction . . . .” (In re Martinez (2003) 30 Cal.4th 29, 37, fn. 8.) That is what occurred here.

This reading is supported by the interpretation given section 2900.1 by the Supreme Court in In re Martinez, supra. Martinez divides the re sentencing process into four phases. “Phase I is the period from the initial arrest to the initial sentencing . . . . Phase II is the period from the initial sentencing to the reversal . . . . Phase III is the period from the reversal to the second sentencing . . ., and phase IV is the period after the second and final sentencing . . . .” (30 Cal.4th at p. 32.) “Calculation of the actual days of conduct credit earned by petitioner during . . . phase II and phase IV confinements should be left to prison authorities.” (Id. at p. 37.) Necessarily, this leaves the calculation of conduct credits earned in phases I and III to the court. Thus, the CDC is to calculate the in-prison credits and the court the non-prison credits and the defendant “is entitled to receive 4019 conduct credits for phases I and III . . . .” (People v. Donan (2004) 117 Cal.App.4th 784, 792; see also Martinez, supra, 30 Cal.4th at p. 32 [“The parties do not dispute that petitioner should accrue credits as a presentence inmate for phases I and III (see § 4019) . . . .”])

Martinez does not allocate the judicial responsibility for calculating presentence credits for phases I and III, although they would have been performed by the individual trial courts, one for the initial sentencing and one for the re sentencing following reversal. However, section 2900.1 does say that “such time [served on the initial commitment and necessarily including the phase I presentence time] shall be credited upon any subsequent sentence he may receive upon a new commitment . . . .”

My colleagues say it was the sole responsibility of the second trial court to do so, relying on Penal Code section 2900.5, subdivision (d). Section 2900.5, subdivision (d) provides that it is “the duty of the court imposing the sentence to determine the . . . total number of days to be credited pursuant to this section.” (Italics added.) However, section 2900.5 applies where there is a section 4019 credit to be “determined.” The point here is under section 2900.1 there was nothing for the re commitment judge (Kenny) to “determine” regarding the initial sentence. That had already been done by the first judge and shown in the initial abstract of judgment pursuant to section 2900.5, incident to the initial sentence for first degree murder.

This is true even under the majority opinion’s view that the credits attributable to the initial sentencing could be waived.

I agree that it would have been better for the sake of clarity for the second judge to have copied the presentence credits from the first abstract of judgment to the second abstract of judgment. He did not do so; rather he directed the CDCR to do so, necessarily implicating the provisions of section 2900.1. Hence the CDCR was on notice that it had that task.

As noted, the CDCR had the information in its file and would have to use it incident to fulfilling its duty of calculating the defendant’s release date from prison. That is not a trial court function. Accordingly, whatever the second judge’s duty to copy the presentence credit determination of the first judge in re sentencing the defendant, the CDCR had a parallel duty involving use of the same information from its file. That duty is to be found in the CDCR regulations.

The defendant was released on parole by the CDCR following his second conviction. The calculation of his parole date necessarily required consideration of his term of imprisonment and that includes the period attributed to county jail time, including the jail time served prior to the initial commitment. Parole by the CDCR is governed by Title 15, California Code of Regulations. Section 2355 provides that “[a]ctual release on parole for a life, non life 1168 or ISL prisoner shall occur when all the provisions of these rules . . . have been met.” Section 2342, subdivision (a) generally provides that preprison custody credit “shall be deducted” from the base period of confinement. Section 2344, subdivision (c), provides as to consecutive sentences, that “[a]ll preprison custody and Sage credit attributable to the DSL principal term crime shall be deducted from that term.” As relevant here, “‘[c]ustody credit’ refers to credit granted pursuant to . . . (4) Penal Code Section 2900.1.” (§ 2341.) Lastly, section 2345 provides that “[i]f any custody credit remains after deducting it from the offense to which it applies, the remaining credit shall be deducted from the parole period.”

I agree that the CDCR has no duty to include such credits if it has no access to the information from which the credits could be obtained. But that is not this case. It simply makes no sense to say that the CDCR was not on notice that there were presentence credits to be applied to defendant’s term, since they are set forth in the first abstract of judgment in its files and the CDCR had a legal duty to consider them under section 2900.1, its own regulations and the court’s order. Accordingly, its failure to do so was a legal cause of the search of defendant’s home.

The majority opinion says the CDCR regulations do not require the CDCR to “calculate” credits to which the defendant was entitled pursuant to sections 2900.1 and 2900.5. However, that is not the point. The CDCR is under a duty to use the credits calculated by the courts in the determining the defendant’s parole release date. That was not done here.

Section 2900.5, subdivision (e) states: “It shall be the duty of any agency to which a person is committed to apply the credit provided for in this section for the period between the date of sentencing and the date the person is delivered to the agency.”


Summaries of

People v. McKinnie

California Court of Appeals, Third District, Sacramento
Mar 26, 2008
No. C055736 (Cal. Ct. App. Mar. 26, 2008)
Case details for

People v. McKinnie

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CHARLES MCKINNIE…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 26, 2008

Citations

No. C055736 (Cal. Ct. App. Mar. 26, 2008)