Opinion
F076548
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. ULISES ALVAREZ MONGE, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR-00540D)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and DeSantos, J.
-ooOoo-
Appellant Ulises Alvarez Monge raises a single issue on appeal: "whether the trial court erred by denying appellant credit for presentence custodial labor in case [No.] 17CR-00540D [(540D)] under Penal Code section 4019, subdivision (b)." The People concede the case should be remanded for the trial court to determine whether appellant is entitled to work credit. We remand the matter for the trial court to determine whether appellant is entitled to credit for presentence custodial labor, and if so, to determine the amount of credit he is entitled to. In all other respects, we affirm.
All statutory references are to the Penal Code. --------
STATEMENT OF FACTS AND THE CASE
On December 19, 2016, in Merced County Superior Court case Nos. 16CR-04788 (4788) and 16CR-07900 (7900), appellant was placed on probation on condition that he serve 180 days in county jail.
On January 12, 2017, while in jail, appellant and several other individuals assaulted the victim.
On March 2, 2017, in an amended complaint appellant and the other individuals were charged in case No. 540D with attempted premeditated and deliberate murder (§§ 664, subd. (a) & 187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), active participation in a criminal street gang (§ 186.22, subd. (a); count 3) and other enhancements for prior convictions and prior prison terms.
On June 26, 2017, appellant pleaded no contest to count 2 and admitted that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22. In exchange for his plea, the People agreed to dismiss the remaining counts and special allegations and that appellant would be given credit for time served.
Based on appellant's plea, the trial court found appellant in violation of his probation in case Nos. 4788 and 7900.
On July 17, 2017, in case No. 540D, the trial court denied probation and sentenced appellant to an aggregate term of seven years in state prison and imposed various fines. The court then sentenced appellant in case Nos. 4788 and 7900 to eight months each, for a total commitment of eight years four months for all three cases. The court reserved jurisdiction over the issue of restitution and set the matter for further hearing on the question of appellant's entitlement to presentence credit.
On October 3, 2017, the trial court gave appellant credit for 187 days of actual presentence custody in case No. 540D, but denied appellant conduct credit under section 4019.
On November 3, 2017, appellant timely filed a notice of appeal challenging the denial of conduct credits in case No. 540D.
On March 28, 2018, appellant filed a motion for correction of presentence custody credits in the trial court (§ 1237.1), in which appellant asked the trial court to award credit for presentence custodial labor. The trial court denied the motion on April 10, 2018.
DISCUSSION
The People correctly concede that the trial court erred in denying appellant presentence work credits pursuant to section 4019 because "there was no evidence that appellant either refused to perform labor or that the sheriff validly withheld the opportunity for appellant to perform labor due to his conduct." The People request that the matter of presentence work credits be remanded to the trial court.
Appellant argues against a remand as follows:
"There is no good reason to remand this matter. The burden of proof set forth in [The People v.] Johnson [(1981) 120 Cal.App.3d 808,] had been the law for more than 35 years when the trial court below conducted a
hearing specifically on the question of appellant entitlement to credit for presentence conduct and labor. The prosecution did not meet its burden, and the record does not show either that work was offered but refused, or that it was withheld for appropriate reasons. That is the record that is before this court. It entitles appellant to credit for 93 days of presentence custodial labor. [¶] ... There is no good reason to give the prosecutor another chance to meet a burden of proof that had existed for over three decades when the prosecutor fought to deny appellant presentence 'custody credits.' "
However, some types of remands have the result of giving the party who had the burden of proof or persuasion "another chance."
Moreover, appellant's assertion "[t]hat is the record that is before this Court. It entitles appellant to credit for 93 days of presentence custodial labor" ignores certain parts of the record.
For example, at the hearing on July 17, 2017, trial counsel for appellant asserted:
"[DEFENSE COUNSEL]: Yes, Your Honor. [Appellant] is requesting that he be sentenced today; however, there is an issue. I know [the prosecution] wanted to argue credits.
"In addition, I did receive credits from Probation, but they don't match up with what [appellant] says he served on the two previous cases, as well as the fact that he's only getting 15 percent good time/work time credits, and it was a non-violent offense he pled to, so I wanted some additional—some additional time to look into that, but [appellant] wants to be sentenced today, and he'll waive his presence for fixing of credits."
The above quoted statement establishes that there was a factual conflict between the information provided by appellant to his attorney and the information provided by the probation department regarding the actual custody credits that were attributable to case No. 540D.
After that hearing, there were two continuances at the request of counsel. There is nothing in the appellate record to negate the possibility that trial counsel was either having difficulty obtaining the pertinent facts or making a legal determination regarding the custody credits attributable to case Nos. 540D, 4788 and 7900.
The hearing on the issue of credits occurred on October 3, 2017. The following exchange occurred:
"THE COURT: ... This is the People's motion to deny credits.
"[DEFENSE COUNSEL]: Yes, Your Honor. My understanding is it was just with regard to [the] case ending 540D, that the credits in the other case would be set as the memos state.
"THE COURT: Okay, so this will be a lot for me to navigate here, Counsel."
Trial counsel thus acknowledged that there were "memos" submitted to the court on the issue of appellant's entitlement to presentence credits. It was appellant's burden on appeal to provide a complete record and summarize all of the pertinent facts. (People v. Dougherty (1982) 138 Cal.App.3d 278.) Appellant has not met that burden with respect to the "memos" in the above quotation as they were not provided to this court.
At the October 3, 2017 hearing, the pertinent discussions on the contested issue of appellant's entitlement to credits in case No. 540D consisted merely of the following:
"[DEFENSE COUNSEL]: Your Honor, my argument would be that [appellant] should receive his half-time credits while at the jail. There was no due process or hearing to outline the alleged violations in jail. He ended up pleading to a lesser charge in this case. There was no trial or even preliminary hearing. I'm asking the credits be set at—let's see, 187 actual plus 186 conduct for a total of 373.
"THE COURT: In all three cases?
"[DEFENSE COUNSEL]: No, just in case 540D, Your Honor. That looks like it moves credits forward from the assault until his plea date here. The other case is the time he was already serving in the jail before the assault, which is 81 actual plus 80."
Counsel and the court then discussed and the court determined the presentence credits which appellant should be awarded in case Nos. 4788 and 7900. The following then occurred regarding case No. 540D:
"THE COURT: ... And then the case ending 540D is a contested matter; correct?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: And he was previously given credits of 187 and 28.
"[DEFENSE COUNSEL]: Your Honor, he was actually never awarded any credits. This has just been continuing.
"THE COURT: Credits are set at zero conduct, 187 actual.
"[DEFENSE COUNSEL]: Correct.
"[PROSECUTOR]: Yes.
"THE COURT: And zero conduct.
"Anything else, counsel?
"[DEFENSE COUNSEL]: No, if my objection could just be noted on the record. Thank you.
"THE COURT: Objection is noted."
The above quoted request by trial counsel and the discussion leading up to the court's ruling on custody credits does not reveal any basis for the amount of credits discussed or any analysis regarding the custody credits attributable to the three cases before the court at that hearing.
The record on appeal was filed in this court on December 11, 2017. It contains a report consisting of a single page apparently prepared by a deputy probation officer which stated in essence that appellant was entitled to actual custody credits of "187" days in case No. 540D, "0" days in case No. 4788 and "0" days in case No. 7900. However, that report did not contain any underlying facts or legal analysis and was not verified. Moreover, that page was inconsistent with the actual custody credits the trial court awarded appellant at the hearing held on October 3, 2017, of 81 days in case No. 7900 and one day in case No. 4788.
On February 5, 2018, appellate counsel filed a motion to augment the record to include "[a]ll minute orders in Merced County case [No. 4788]" and "[a]ll minute orders in Merced County case [No. 7900]." In his motion, counsel asserted:
"2. Appellant seeks augmentation to include the above documents in order to complete the record with regard to appellant's entitlement to credit for presentence custody in the current matter, Merced County case [No. 540D].
"3. Augmentation of the record to include these matters is necessary in order to afford appellate counsel the opportunity and ability to determine the propriety of the trial court's order granting appellant credit for presentence custody in Merced County case [No. 540D].
"4. I am presently unable to evaluate the trial court's grant of presentence custody credit due to the overlap of appellant's custody in case [Nos. 4788, 7900] and the current matter, case [No. 540D]. Appellant was sentenced in all three matters at the same time.
"5. I have attempted to resolve my inability to determine the propriety of the trial court's award of credit for presentence custody in case [No. 540D] by contacting appellant's trial counsel and by looking at the Merced County Superior Court website. The Superior Court website does not permit the searches necessary to answer my questions. Appellant's trial counsel committed to obtaining the information for me, but has yet to follow through."
Appellate counsel thus admitted to this court that the record on appeal filed prior to February 5, 2018, provided an inadequate and incomplete record with which to determine appellant's entitlement to presentence credits in case No. 540D.
On February 23, 2018, this court granted appellant's augmentation motion. The augmented record was filed on April 4, 2018, and consisted of numerous minute orders in case Nos. 4788 and 7900. Appellant does not cite to any portion of that augmented record or attempt to meet his burden of summarizing all of the pertinent facts that may be contained in that augmented record. (People v. Dougherty, supra, 138 Cal.App.3d 278.) The fact that appellant did not cite to the augmented record indicates that it also was insufficient to clarify appellant's entitlement to conduct credits.
On April 23, 2018, appellate counsel filed an additional motion to augment the record to include the proceedings initiated by appellant's filing in the trial court on March 28, 2018, of an "EX PARTE MOTION FOR CORRECTION OF CUSTODY CREDITS." The augment motion was granted and the additional augmented record was filed on June 20, 2018.
The augmented record filed on June 20, 2018, established that: (1) the motion appellant filed on March 28, 2018, provided no additional records or specific facts regarding the actual custody credits appellant was entitled to and requested an evidentiary hearing; (2) on April 2, 2018, opposition was filed by the People; and (3) on April 10, 2018, the trial court denied the motion and the request for an evidentiary hearing but ordered an amended abstract of judgment filed correcting a clerical error in the original abstract regarding the date of sentencing. Appellant did not file a notice of appeal from that denial.
A probation report in case No. 540D may have shed light on the amount of presentence custody credits appellant was entitled to. However, at the hearing held on June 26, 2017, appellant's trial counsel waived the preparation of a full probation report.
In light of the above considerations and appellate counsel's admissions, this court concludes that the appellate record is not sufficient to determine the actual custody credits appellant is entitled to. It necessarily follows that the matter must be remanded to the trial court that has access to all of the pertinent records in case Nos. 4788, 7900 and 540D. (People v. Fares (1993) 16 Cal.App.4th 954, 956-957.) Faced with a similar inadequate and incomplete record, Fares remanded the issue of presentence credits to the superior court to "reconsider the information before it, including such additional information as it may determine appropriate." (Id. at p. 960.)
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court "with instructions that the court reconsider the information before it, including such additional information as it may determine appropriate, and render a revised order correctly determining the number of days of [presentence credits] to which ... appellant is entitled." (People v. Fares (1993) 16 Cal.App.4th 954, 960.)