Opinion
F061542 Super. Ct. No. MCR022337 Super. Ct. No. MCR023274 Super. Ct. No. MCR023933 Super. Ct. No. MCR031144 Super. Ct. No. SCR007458
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. ASATOUR HOVSEP NAGAPETIAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from a final judgment entered upon defendant's plea of no contest to one count of each of five separate informations. There is no merit to defendant's contentions. We will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The issues on this appeal only tangentially concern the facts of the crimes charged against defendant and appellant Asatour Hovsep Nagapetian. Accordingly, our factual summary will be brief, and will be restricted to those facts necessary to understanding the issues.
Five separate informations were filed against appellant on July 27, 2010. In total, the informations contained 34 counts alleging various theft and bad-check offenses. Pursuant to a plea agreement, defendant pled no contest to the first count of each information in return for a maximum sentence of three years for all the offenses. Accordingly, defendant pled no contest to one count of grand theft (Pen. Code, § 487a) in case No. MCR022337; one count of receiving stolen property (Pen. Code, § 496, subd. (a)) in case No. MCR023274; one count of identity theft (Pen. Code, § 530.5, subd. (a)) in case No. MCR023933; one count of passing a false check (Pen. Code, § 476) in case No. SCR007458; and one count of second degree burglary (Pen. Code, § 459) in case No. MCR031144.
During a portion of defendant's pretrial custody on these charges, he was being held in Fresno County, apparently both on state charges and on a federal parole violation. As a result, at the change of plea hearing defense counsel asserted that, as to each of the five cases, defendant would be entitled to 1,035 days of credit for actual custody and the change of plea form stated, as the condition of the plea: "All cases to run concurrent to each other and Fresno case ... F4200022-2 (as of 10/22 time credits 1035 actual days). Harvey waiver on all d/m'd counts." However, when defense counsel requested that the court release defendant based on the amount of time served, the court responded: "Unfortunately, the Court doesn't have that information before it." Further, the portion of the change of plea form stating "and Fresno case ... F4200022-2 (as of 10/22 time credits 1035 actual days)" was stricken through and the strike-out was initialed by someone, although the initials are illegible. When defense counsel recited the terms of the plea agreement for the record, he stated: "Conditions of the plea being that there be three-year sentence on each case concurrent with each other, Harvey waiver on all other counts."
The report of the probation officer, filed October 27, 2010, states, in relevant part: "There are some issues regarding time credits as the minute order dated October 22, 2010, indicates the defendant's counsel reports the defendant is entitled to 1,035 days in custody. However, the defendant was arrested by Madera County officials on the date he paroled, which was April 28, 2010, on the outstanding warrants. Prior to this arrest date, the defendant was incarcerated and serving time on federal violations of parole and a felony conviction out of Fresno County. The defendant admitted to violating his federal parole on January 30, 2006 based on the crimes which gave rise to Madera Case MCR022337, but he also admitted to violating his Federal parole based on Fresno County Case F04200022-2. The crimes he committed in Fresno County differ from those in Madera County, in that each involve a different victim and occurred on different dates. As such, it does not appear that the defendant is entitled to dual time credits for time spent in custody on the violation of federal parole or the new offenses committed out of Fresno County."
At the sentencing hearing on December 3, 2010, defense counsel moved to withdraw defendant's no contest plea. Counsel stated: "[R]eferences to the Fresno case and to the federal case were removed by interlineation on the plea forms. Mr. Nagapetian informs me that he did not realize that was happening. As far as I can recall, I don't recall whether it was spoken to him about either. Based upon that, I would ask that his pleas be withdrawn in all the matters and the matters be set for trial." The court responded: "I vividly recall the entry of the plea. I recall the plea form being modified. I recall [defense counsel] taking it over, showing it to Mr. Nagapetian. And then providing it to the Court. I also recall the subsequent -- sometime subsequent to that Mr. Nagapetian acknowledging that the fact that there had been interlineation of the plea form. And he was aware of it and him not having a copy of it. The Court has the original. The only way he would know of that was if he was aware of it at the time." The court subsequently denied the motion to withdraw the plea.
The hearing then turned to sentencing credits. The prosecutor stipulated that the criminal conduct for which defendant had been held in Fresno County was "somehow connected" to the criminal conduct charged in Madera County case No. MCR023933. The court imposed three-year concurrent terms in the five cases, together with fines and fees. The court awarded 1,040 days of presentence credit in case No. MCR023933, including 602 days of credit for custody in Fresno County. As to the other four cases, the court awarded custody credit based only on Madera County custody. The abstracts of judgment reflect the court's oral pronouncement of sentence.
DISCUSSION
Defendant contends the court erred in denying his motion to withdraw his plea in the five cases. In addition, he contends, somewhat inexplicably, that custody credits shown in the abstracts of judgment do not "correspond with the court's oral pronouncement [of judgment]."
The trial court did not err in denying defendant's motion to withdraw his no contest pleas. Defendant acknowledges that release from custody at the time of sentencing was not a condition of his plea bargain, and he acknowledges that neither the prosecutor nor the court misled him into believing that such release would be forthcoming. Instead, he contends he entered into the plea agreement based upon his own misconception concerning the available presentence credits, believing that his credits were sufficient to obtain immediate release on the three-year sentence that was the basis for the plea agreement. He argues that his mistake "effectively over[came] the exercise of [] his free judgment. Here, the record is clear that appellant did not understand the parameters of the sentence contemplated by the bargain. He fully believed that once he entered his plea, the sentence he was going to receive would be fully satisfied by the term he had already served." The record does not support this contention.
When a defendant receives credit for custody in other proceedings, as was the case here, the defendant is only entitled to presentence credit in the present case if the presentence custody arose exclusively from the same conduct that is the basis for the present charges. (People v. Bruner (1995) 9 Cal.4th 1178, 1192.) When defendant asserted the right to credit for 1035 days of credit at the change of plea hearing, which included 602 days of credit in Fresno County, the court declined to establish that level of credit on the basis that, "[u]nfortunately, the Court doesn't have that information before it." Similarly, the statement defendant wrote on the change of plea form, attempting to establish full credit in the current cases for his custody in Fresno County, was stricken from the form. At the hearing on defendant's motion to withdraw the plea, the court found, on substantial evidence, that defendant was aware of this modification of the change of plea form at the time it was made and that "there was no guarantee as to what his specific time credits were."
Accordingly, defendant may have hoped, at the time of his change of plea, that he would be able to establish that he was entitled to credit for the Fresno County custody; nevertheless, the trial court determined that, as a factual matter, defendant knew, at the time of his change of plea, that he had the obligation to establish this entitlement. Defendant may, indeed, have overestimated his ability to establish his entitlement to full presentence credit under the standard of People v. Bruner, supra, 9 Cal.4th at page 1192, but that is not the same thing as misunderstanding the terms of the plea bargain - which bargain, as the trial court found, did not guarantee defendant any particular level of presentence credit beyond the statutory entitlement. Defendant has not established the trial court abused its discretion in denying his motion to withdraw his no contest pleas.
At the time of sentencing, the court expressly awarded defendant 1,040 days of credit in case No. MCR023933, including 602 days of custody in Fresno County. As to the remaining four cases, the court expressly awarded less credit—that is, credit for presentence custody in Madera County after defendant's release from custody in Fresno County. The abstract of judgment for each separate case number reflects the award of time credit that the court stated on the record at sentencing. Notwithstanding this record on appeal, defendant contends the abstracts of judgment do not "correspond with the court's oral pronouncement" of judgment. For reasons that are not completely clear, respondent's brief concedes this issue and requests that we order amendment of all the abstracts of judgment to show 1,040 days of time credit. For the reasons stated in our earlier discussion of defendant's motion to withdraw his no contest pleas, we decline respondent's invitation and reject defendant's contention on appeal. Defendant was not entitled to additional time credits in the cases other than case No. MCR023933.
Defendant was entitled to 219 days of custody credit in Madera County and 219 days of conduct credit, for a total of 438 days. When the court orally pronounced judgment, the court reporter apparently heard the court say "290" instead of "219" in some instances, and that error found its way onto some of the abstracts of judgment. The total credit on the abstracts of judgment is correctly stated as 438 days on three of the abstracts of judgment, but is stated as 430 on one abstract. We direct the trial court to cause preparation of amended abstracts of judgment to reflect the correct award of credits, as follows: MCR022337 - Line 12, credit for time spent in custody should be 438; SCR007458 - Line 12, actual local time should be 219; MCR031144 - Line 12, local conduct credit should be 219.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare amended abstracts of judgment to reflect the changes set forth immediately above, and to distribute the amended abstracts appropriately.