Opinion
C040223.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. DENNIS CHARLES MULVEY, Defendant and Appellant.
Following this courts reversal of his conviction of second degree murder (Pen. Code, § 187, subd. (a); further undesignated statutory references are to the Penal Code), defendant Dennis Charles Mulvey was returned to the trial court for a new trial. (People v. Mulvey (July 30, 1998, C025212) [nonpub. opn.].) He ultimately pleaded no contest to voluntary manslaughter with use of a firearm. (§§ 192.5, subd. (a), 12022.5, subd. (a).) Defendant was sentenced to a determinate term of 15 years in state prison with credit for 1,026 days actually served, and 153 days of conduct credit. This appeal is from an order of the trial court made several years after judgment, which amended the abstract at the request of the California Department of Corrections (CDC). Trial court orders ultimately reduced the conduct credit award to 40 days, limiting the award to the time defendant was actually housed in county jail before his first sentencing and from the time he was returned to county jail after reversal of his conviction to the time of his second sentencing.
On appeal, defendant contends that following a complete reversal of his original conviction, he was entitled to accrue conduct credit as a presentence prisoner for all the time served in state prison and in county jail from the date of his arrest until the imposition of his second sentence.
During the pendency of this appeal, our Supreme Court decided In re Martinez (2003) 30 Cal.4th 29 (Martinez). In Martinez, the Supreme Court held that a "petitioners prereversal prison time ought not be viewed as presentence custody, and [defendants] credit accrual should be calculated in accordance with [defendants] ultimate postsentence status." (Id . at p. 31.) Our Supreme Court decided that a prisoners reversion to the status of a presentence prisoner did not begin until the date of filing of the appellate opinion reversing the conviction. (Id. at p. 32.) Before that time, if serving a prison sentence, he is a state prisoner. But a defendant is entitled to be treated as a presentence prisoner following the reversal of his conviction, even if he remains in prison. (Id. at p. 31.)
We have followed the formula established in Martinez. We disagree with defendants argument that the trial court was correct in its first award of credit that awarded conduct credit for all actual time served before sentencing. But the trial court also erred by awarding conduct credit solely for time spent housed in county custody, as reflected in the later amended abstract. We therefore vacate the trial courts order modifying the judgment, and modify the judgment anew.
FACTS AND PROCEDURAL HISTORY
Defendant was arrested on May 4, 1996, and on November 4, 1996, he was sentenced to prison for second degree murder. Following the Martinez formula, this period of true presentence custody is now denominated "phase I." (Martinez, supra, 30 Cal.4th at p. 32 ["Phase I is the period from the initial arrest to the initial sentencing . . ."].)
Defendant was a sentenced state prisoner from November 5, 1996, until July 29, 1998, the day before this court reversed defendants conviction. (People v. Mulvey (July 30, 1998, C025212) [nonpub. opn.].) This is phase II. (Martinez, supra, 30 Cal.4th at p. 32 ["Phase II is the period from the initial sentencing to the reversal . . ."].)
From July 30, 1998, until February 24, 1999, defendant was held both in CDC custody and in local county jail custody. This is phase III. (Martinez, supra, 30 Cal.4th at p. 32 ["Phase III is the period from the reversal of the conviction until the second sentencing . . ."].) Phase IV began on February 25, 1999, and continues to date. (Ibid. ["[P]hase IV is the period after the second and final sentencing . . ."].)
At the plea and sentence hearing on February 24, 1999, defendant was awarded credit for 1,026 days served (from May 4, 1996, to February 24, 1999) in state and local custody, and 153 days of conduct credit. The 153 days awarded constituted 15 percent credit for all actual days served, from arrest to the second sentencing.
Defendant then began serving phase IV, the second sentence. (Martinez, supra, 30 Cal.4th at p. 32.)
Several years after defendants second sentencing hearing, further proceedings were generated by communications from CDC, which in turn resulted in this appeal.
On October 31, 2001, more than two years after the new judgment, CDC sent a letter in which it claimed that the trial court had erroneously "restored" credit that defendant had "lost" while in CDC custody. CDC stated that defendant had been in continuous state custody, and that he had lost 270 days of conduct credits while in "CDC custody" from November 13, 1996, to February 24, 1999. The letter claimed that CDC alone had the responsibility to determine "worktime" credit after initial sentencing.
On January 14, 2002, the trial court agreed with the Peoples contention that it must defer to CDC to award custody credit while defendant was housed in CDC. The trial court awarded conduct credit of 27 days for the time defendant was actually housed in the county jail before sentencing and 13 days following his return from state prison. Defendant appealed.
On January 28, 2002, while this case was on appeal, CDC again wrote to the trial court. The letter pointed out that the January 14, 2002, order was still wrong. CDC stated that the abstract of judgment should reflect 1,026 actual days, and only 27 days of conduct credit, adhering to its position that the trial court had jurisdiction to award only conduct credit for presentence time before the first, subsequently overturned, conviction.
On March 11, 2002, while this case still was on appeal, the trial court issued another amended abstract of judgment, again awarding actual custody credit of 1,026 days. The trial court again ordered the abstract to show 40 days of conduct credit, which was 15 percent credit for the time actually spent in local county custody before February 24, 1999, from May 4, 1996, to November 4, 1996, and from November 24, 1998, to February 24, 1999.
The trial court declined to make any award for conduct credit for defendants time actually housed in CDC, from November 4, 1996, to November 24, 1998, the date defendant was delivered back to Shasta County. The trial court left that determination up to CDC. This is the heart of the trial courts error and the crux of the appeal.
DISCUSSION
We note preliminarily that defendant argued in his brief that principles of equal protection required him to be treated as a presentence prisoner, no matter where housed, from his arrest until his second valid sentencing hearing. Defendants contention that he was similarly situated to a pretrial detainee was rejected in Martinez. (Martinez, supra, 30 Cal.4th at p. 36.)
The trial court was required to calculate all actual custodial days served by defendant in this case. (§ 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 23, 37.) Both parties agree that 1,026 is the correct number of actual days from arrest to the second sentencing hearing (May 4, 1996, to February 24, 1999). But during these drawn out proceedings several theories were posited to analyze and change defendants conduct credit accrual status. As it turns out, given Martinez, all are wrong. We need not further detail those analyses, we need only apply Martinez.
As we have said, in Martinez, the Supreme Court noted that the People conceded that defendant should be treated as a presentence prisoner for credit accrual purposes before his first sentencing (phase I) and following the date the opinion reversing his conviction was filed until the second sentencing (phase III). Defendant earned conduct credit as a presentence prisoner from May 4, 1996, to November 4, 1996 (phase I), and from July 30, 1998, until February 24, 1999 (phase III). Accordingly, we shall award conduct credit under section 2933.1, subdivision (c) for the 395 actual days spent in phase I (May 4, 1996, to November 4, 1996), and in phase III (July 30, 1998, to February 24, 1999). Under the 15 percent statutory scheme, defendant is entitled to 59 days of conduct credit.
However, during phase II — from the first sentencing until the date of the reversal — defendant must accrue credit as a state prisoner. (Martinez, supra, 30 Cal.4th at p. 31.) Martinez also held that the applicable statutory scheme for credit accrual during phase II is based on defendants ultimate guilty plea or conviction. (Ibid.) In the present matter, because defendant pleaded guilty to voluntary manslaughter, he is subject to the postsentencing limitations of 2933.1, subdivision (a) for his phase II time (November 4, 1996, until July 30, 1998).
We note in passing that it may not seem to matter whether defendant accrued 15 percent credit during phase II as a presentence prisoner or a postsentence prisoner. During the history of this case, defendant is, and has always been, ineligible to earn any more than 15 percent conduct credit either as pretrial or postsentence credit because he falls within the specific statutory limitations of section 2933.1. But the provisions of section 2933.1, subdivision (a) contain the 15 percent limit on "worktime" for state prisoners as "work time" is defined in section 2933. Section 2933.1, subdivision (c) applies the 15 percent limit to presentence time in local custody. Because section 2933.1, subdivision (a) refers to the credit accrual and forfeiture scheme for sentenced prisoners set forth in great detail in section 2933, the postsentence prisoner under subdivision (a) risks losing much more credit than 15 percent of what he has already served because he can lose future conduct credits. He, in effect, may be faced with a "negative" number of credit days to be made up before he can again gain credit that can actually reduce his sentence. In contrast, a presentence prisoner under subdivision (c) cannot lose more than the 15 percent conduct credit retrospectively awarded at sentencing.
CDCs letters to the court illustrate the difference. In this case, CDC informed the trial court that under its scheme, defendant lost 270 days of credit and could not earn credit for 38 more days due to misconduct. Under the 15 percent formula, that is nearly five years of conduct credit. That interpretation now applies only to a defendant whose conviction was not completely reversed, such as the defendant in People v. Buckhalter. Buckhalter remained a sentenced state prisoner while housed in the county jail awaiting a modification of sentence. After Martinez, a defendant whose conviction has been reversed becomes subject to presentence detainee status once the appellate opinion has been filed. Hence, CDCs opinion of the scope of its authority to award credit and withdraw credit based on custody rather than presentence status, is clearly wrong.
Thus, following the mandate of Martinez, we hold that defendant must be treated as a sentenced state prisoner in phase II — the period from the first sentencing until the reversal of the judgment. In this case, that period is from November 5, 1996, until July 29, 1998.
Accordingly, upon receipt of the modified abstract of judgment, CDC may award conduct credit for phase II, and may utilize the provisions of section 2933.1, subdivision (a) to forfeit conduct credit from misconduct committed during phase II. CDC may not forfeit any of petitioners earned or potential credit for any act of misconduct committed in phase III, after July 30, 1998. CDCs letters to the trial court failed to state when the act or acts were committed causing defendants "lost" credit. The date of those acts is of critical importance because if those incidents occurred before the reversal of defendants conviction on July 30, 1998 (during phase II), CDC may apply its credit accrual and forfeiture scheme. However, if CDC took away credit for incidents occurring after July 30, 1998 (during phase III), his credit accrual and forfeiture status is governed by the presentence statutory scheme of section 2933.1, subdivision (c), and CDC may not now apply section 2933.1, subdivision (a) and related statutes.
DISPOSITION
The order of the trial court awarding 40 days of conduct credit is vacated. The judgment of the trial court is modified, as follows:
(1) Defendant is awarded credit for 1,026 actual days served as of February 24, 1999, under Penal Code section 2900.5;
(2) Defendant is awarded total conduct credit of 59 days under Penal Code section 2933.1, subdivision (c) (15 percent of 185 actual days served from May 4, 1996, to November 4, 1996, and 210 actual days served from July 30, 1998, to February 24, 1999);
(3) The Department of Corrections shall determine the amount of conduct credit under Penal Code section 2933.1, subdivision (a) for 631 actual days served from November 5, 1996, to July 29, 1998.
The superior court shall prepare a modified abstract of judgment reflecting these orders, and forward a certified copy to the Department of Corrections.
In all other respects, the judgment is affirmed.
We concur: SCOTLAND, P.J. and DAVIS, J.