Opinion
F083714 F084571
04-18-2023
THE PEOPLE, Plaintiff and Respondent, v. URIE NORRIS, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF179860A Colette M. Humphrey, Judged
Judge Humphrey presided over the plea and sentencing. Judge Michael G. Bush presided over the motion to correct custody credits.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Urie Norris pled no contest pursuant to a negotiated plea agreement to assault with a deadly weapon and two counts of domestic violence. The trial court imposed the negotiated sentence of six years eight months. On appeal, he argues (1) his sentence must be vacated and his case remanded for resentencing in light of Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) amendments to Penal Code section 1170, subdivision (b); and (2) the trial court must recalculate presentence custody credits because the custody credits awarded did not account for all presentence custody periods. The People concede that the trial court's custody credit calculation was erroneous. Otherwise, they respond that defendant is not entitled to the benefit of Senate Bill 567 because his sentence was imposed as part of a negotiated plea agreement. We vacate the portion of defendant's sentence calculation of custody credits and remand for the trial court to recalculate custody credits. In all other respects, we affirm.
All further statutory references are to the Penal Code.
PROCEDURAL SUMMARY
On October 2, 2020, the Kern County District Attorney filed a consolidated information charging defendant with three counts of domestic violence (§ 273.5, subd. (a); counts 1, 4, &7), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), two counts of assault by force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 3 &5), vandalism (§ 594, subd. (b)(1); count 6), battery causing serious bodily injury (§ 243, subd. (d); count 8), false imprisonment (§ 236; count 9), stalking (§ 646.9, subd. (b); count 10), dissuading a witness (§ 136.1, subd. (b)(2); count 11), misdemeanor vandalism (§ 594, subd. (b)(1); count 12) and two misdemeanor counts of violating a restraining order (§ 273.6, subd. (a); counts 13 &14). As to count 7, the consolidated information alleged that defendant inflicted great bodily injury in commission of the offense (§ 12022.7, subd. (a)). As to counts 7 through 11, the consolidated information further alleged that defendant committed the offenses while released from custody pending trial (§ 12022.1).
On February 18, 2021, pursuant to a negotiated plea agreement, defendant pled no contest to counts 2, 4, 6, and 7. In exchange for defendant's no contest pleas, the remaining counts and allegations of the consolidated information were dismissed with a Harvey waiver on the prosecutor's motion. The plea agreement further specified that the trial court would sentence defendant to the aggregate term of six years eight months as follows: on count 2, four years (the upper term); on count 4, one year (one-third the middle term), consecutive to the sentence on count 2; on count 7, one year (one-third the middle term), consecutive to the term on count 4; and on count 6, eight months (one-third the middle term), consecutive to the term on count 7. The parties stipulated that the "police report" contained a factual basis for defendant's plea and could be used by the court to find a factual basis.
People v. Harvey (1979) 25 Cal.3d 754.
On March 18, 2021, the trial court imposed the agreed-upon sentence. The court further awarded defendant custody credit for 278 days served and 278 days of good conduct and work.
On June 23, 2022, this court granted defendant's application to permit filing of a late notice of appeal.[3] On July 6, 2022, appointed counsel for defendant filed a notice of appeal which we deem to be timely.
Because defendant's arguments do not implicate the facts underlying his convictions, we omit any summary of the facts.
I. Senate Bill 567
Defendant contends that we must vacate his sentence and remand the matter because he did not admit and a jury did not find true any circumstances in aggravation, nor did the trial court find that circumstances in aggravation of the offenses justified a sentence exceeding the middle term as required by section 1170, subdivision (b) as modified by Senate Bill 567. The People respond that the modifications to section 1170 brought about by Senate Bill 567 are inapplicable in this case because the court had no discretion to impose a sentence other than the stipulated sentence set out in the negotiated plea agreement. We agree with the People.
Defendant also argues that the trial court was not permitted to rely on the Harvey waiver to consider the dismissed counts in making its trifecta determinations between the lower, middle, or upper terms in this case because defendant was not advised that the Harvey waiver could carry penal consequences. Because the court did not consider the dismissed counts in making its trifecta determinations-it simply imposed the negotiated sentence without other considerations-whether the court was permitted to consider the dismissed counts in making its trifecta determinations is not at issue.
A. Additional Background
On March 18, 2021, the trial court sentenced defendant pursuant to the negotiated plea agreement. The court did not discuss or consider circumstances in aggravation or mitigation. The probation officer's "short report" identified no circumstances in aggravation or mitigation. Based on the record before us, no other probation officer's report was before the trial court.
B. Retroactivity
As a threshold matter, Senate Bill 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039 [remanding for resentencing under another ameliorative amendment to section 1170 by Senate Bill 567]), and defendant's sentence is not yet final on appeal. The parties agree that Senate Bill 567 is retroactive and that defendant's sentence is not yet final on appeal.
C. Analysis
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b)(2), such that it now provides, "[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) On the other hand, section 1192.5, subdivision (b), provides, in relevant part, that when a "plea is accepted by the prosecuting attorney in open court and is approved by the court, ... the court may not proceed as to the plea other than as specified in the plea." (§ 1192.5, subd. (b), italics added.)" '" 'A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.'" '" (People v. Stamps (2020) 9 Cal.5th 685, 700-701.) While the plea bargain does not divest the trial court of its inherent sentencing discretion,"' "a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain." '" (Id. at p. 701; see § 1192.5, subd. (b) [when a "plea is accepted by the prosecuting attorney in open court and is approved by the court, . . . the court may not proceed as to the plea other than as specified in the plea"].) Thus, when the defendant and the prosecutor agree that a specified sentence will be imposed, the court does not exercise discretion within a range of otherwise permissible sentences, but rather imposes the agreed-upon sentence. (See People v. French (2008) 43 Cal.4th 36, 49.)
A trial court is permitted to rely upon a certified record of conviction to determine prior criminality for purposes of sentencing without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)
The People contend that section 1170, subdivision (b)(2), applies only when the trial court's discretion is not restrained by a negotiated plea agreement pursuant to section 1192.5. They reason that when a plea agreement stipulates that the upper term be imposed, the court exercises no discretion and may not make the finding required by section 1170, subdivision (b)(2). For that proposition, the People rely on People v. Brooks (2020) 58 Cal.App.5th 1099 and People v. Mitchell (2022) 83 Cal.App.5th 1051 (Mitchell), review granted December 14, 2022, S277314. In Brooks, the defendant entered a plea agreement that stipulated to a 13-year sentence. (Brooks, at p. 1102.) Brooks petitioned the lower court to be resentenced, pursuant to recently enacted section 1170.91, subdivisions (a) and (b)(1), which, collectively, required the trial court to consider specific mental health problems as circumstances in mitigation when sentencing military veterans and permitted military veterans with such problems to petition for a recall of sentence. (Brooks, at pp. 1102-1103; § 1170.91, subds. (a) &(b)(1); see § 1170.91 ["court shall consider the [identified] circumstance as a factor in mitigation when imposing" a term under subdivision (b) of section 1170].) The trial court concluded that it had no power to resentence defendant because his plea agreement provided for a stipulated term. (Brooks, at p. 1103.) The appellate court affirmed, concluding that section 1170.91 does not "extend[] to sentences based on final convictions by plea agreement specifying a stipulated imprisonment term." (Brooks, at p. 1106.) The court explained that there was no "triad sentencing discretion to exercise" because the plea agreement specified the sentence to be imposed and, pursuant to section 1192.5, no other sentence could properly be imposed. (Brooks, at p. 1107.)
In Mitchell, the defendant had been sentenced to an upper term sentence pursuant to a stipulated plea agreement without consideration of factors in aggravation or in mitigation. (Mitchell, supra, 83 Cal.App.5th at pp. 1055, 1058.) The defendant argued that the Court of Appeal was required to reduce her sentence to a middle term sentence in order to comply with Senate Bill 567. (Id. at p. 1056.) The Mitchell court concluded that Senate Bill 567's amendments to section 1170 did not apply to a sentence imposed pursuant to a stipulated plea agreement "as the trial court lacks discretion to select the sentence in the first place." (Id. at p. 1058.)
This court recently considered the same issue in People v. Sallee (2023) 88 Cal.App.5th 330 (Sallee), and reached the same outcome as Mitchell, based on similar reasoning. We explained that when a trial court "impose[s] a stipulated sentence pursuant to a negotiated plea agreement ... the court's discretion [is] limited to approving or rejecting the bargain. The court [does] not exercise discretion to select between the lower, middle, or upper term based on any aggravating or mitigating circumstances." (Sallee, at p. 338.) "Thus, section 1170, subdivision (b), which governs the court's exercise of discretion with regard to a sentencing triad, does not apply." (Ibid.) We further explained that Brooks and People v. King (2020) 52 Cal.App.5th 783, 791- which also addressed the same section 1170.91 issue as Brooks-both support our conclusion. (Sallee, at pp. 339-340.) Here, we reach the same conclusion for the same reasons.
For the same reasons articulated in Sallee and Mitchell, we conclude in this case the trial court did not exercise triad discretion when it imposed the stipulated sentence set out in the negotiated plea agreement and therefore the amendments to section 1170 brought about by Senate Bill 567 are not applicable in this context. (See Sallee, supra, 88 Cal.App.5th at p. 340.) We find no error.
II. Presentence Custody Credits
Defendant argues that the trial court erred in calculating custody credits by crediting him for only some of his periods of confinement attributable to this case. However, defendant is unable to identify how many additional credits are purportedly due. The People do not concede that defendant is entitled to additional presentence custody credits because the record before this court on the issue is limited. However, they agree, as do we, that the matter should be remanded to the trial court to determine the merits of defendant's claim.
A. Additional Background
On March 18, 2021, the trial court sentenced defendant and awarded him 278 days actual custody credit and 278 days good conduct and work credit. The probation officer's "short report" reflected that defendant was to receive credit for three periods of custody in the Kern County Jail: from January 25, 2020, to January 30, 2020; from March 2, 2020, to March 26, 2020; and from July 15, 2020, to March 18, 2021.
On November 1, 2021, defendant filed a motion, in propria persona, to correct presentence custody credits in the trial court. On November 10, 2021, the court appointed counsel to represent defendant with respect to recalculation of custody credits. On November 17, 2021, defendant's appointed counsel agreed with the custody credit calculation prepared by the probation officer and awarded by the court at defendant's sentencing hearing. The court therefore denied defendant's motion.
On March 26, 2022, defendant's former appellate counsel sent a letter to the trial court (and served the prosecutor with a copy) requesting recalculation of presentence custody credits. Former appellate counsel explained that the error in calculating presentence custody credits was likely attributable to the parties and the court having overlooked the fact that the counts of the consolidated information were originally disbursed between six case numbers. However, at the sentencing hearing, the court looked only at the probation officer's "short report" on the consolidated case number which included only a portion of defendant's time in custody on the offenses charged in the consolidated information. As an attachment to her letter, defendant's former appellate counsel included case detail summaries from the original case numbers of counts consolidated into the consolidated information in this case. Several of those summaries suggest that defendant was arrested on dates for which he received no custody credit: in Kern County Superior Court case No. BM934002A, defendant appears to have been arrested on March 8, 2019; in Kern County Superior Court case No. BM934840A, defendant appears to have been arrested on March 29, 2019; and in Kern County Superior Court case No. BM945040A, defendant appears to have been arrested on December 31, 2019. Moreover, the complaint filed in Kern County Superior Court case No. BF179511A-which contained the vandalism charge with an offense date of December 24, 2019, included in the consolidated information in this case as count 6- reflected a booking number, suggesting that defendant was in custody on or around the time the prosecutor filed that complaint on December 27, 2019. Nevertheless, the trial court declined to recalculate presentence custody credits, finding in a minute order that the letter was an "[i]mproper [e]x [p]arte communication."
B. Legal Standard
A defendant accrues actual custody credits pursuant to section 2900.5 and conduct credits pursuant to section 4019 for time spent in custody prior to sentencing. (§§ 2900.5, 4019; People v. Arevalo (2018) 20 Cal.App.5th 821, 827.) We review the trial court's award of presentence custody credits de novo. (Arevalo, at p. 827.)
Section 1237.1 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction."
C. Analysis
The parties agree, as do we, that the trial court erred in concluding that defendant's former appellate counsel's informal request for recalculation of defendant's custody credits-served on all involved parties-was an improper ex parte communication. Section 1237.1 required her to present that request to the trial court before presenting it to us. That request was properly before the court and should not have been rejected as an improper ex parte communication.
On the record before us, it appears that defendant may not have been awarded custody credit for all presentence periods of custody related to this case because of miscounting due to consolidation of multiple cases. However, based on the limited record before us, we cannot determine what, if any, additional credits defendant is due. We will therefore remand the matter for the trial court to recalculate defendant's presentence custody credits and for no other purpose.
DISPOSITION
The matter is remanded to the trial court to recalculate defendant's presentence custody credits. In all other respects, the judgment is affirmed.
[*] Before Detjen, Acting P. J., Franson, J. and Snauffer, J.