Opinion
E055034
2013-11-7
The PEOPLE, Plaintiff and Respondent, v. Edgar NUNEZ, Defendant and Appellant.
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 310. APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed with directions. (Super. Ct. Nos. INF10000212 & INF1101571)
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 310. APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed with directions. (Super. Ct. Nos. INF10000212 & INF1101571) Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S. White and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P.J.
I.
INTRODUCTION
A. Case No. INF10000212 (Case 1)
On February 3, 2010, an information charged defendant and appellant Edgar Nunez with one count of possessing a controlled substance for sale, methamphetamine, under Health and Safety Code section 11378 (count 1); and possessing paraphernalia used for unlawfully injecting and smoking a controlled substance under Health and Safety Code section 11364 (count 2). With regard to count 1, the information further alleged that defendant possessed for sale a substance containing 28.5 grams or more of methamphetamine, and 57 grams or more of a substance containing methamphetamine, within the meaning of Penal Code section 1203.073, subdivision (b)(2).
All further statutory references are to the Penal Code unless otherwise indicated.
On June 4, 2010, defendant pled guilty to all counts.
The same day, defendant was sentenced to state prison for a total term of two years. The trial court selected count 1 as the principal count and imposed the middle term of two years. On count 2, the trial court imposed 180 days to run concurrent to count 1. The trial court suspended execution of the sentence and placed defendant on supervised probation for three years with 365 days in local custody. Defendant was awarded credit for time served for 16 actual days plus 16 days under section 4019, for a total of 32 days credit. B. Case No. INF1101571 (Case 2)
On August 10, 2011, an amended information charged defendant with one count of possessing a controlled substance for sale, methamphetamine, under Health and Safety Code section 11378 (count 1). With regard to this count, the information alleged that defendant was previously convicted of a felony violation of section 11378 of the Health and Safety Code, within the meaning of Health and Safety Code section 11370.2, subdivision (c). The information also alleged that defendant had one or more prior convictions for violating the Health and Safety Code, within the meaning of Penal Code section 1203.07, subdivision (a)(11).
On October 24, 2011, defendant pled guilty as charged and admitted the prior conviction enhancements.
C. Sentencing in Both Cases
1. Case 1
On October 24, 2011, because of defendant's guilty plea in Case 2, the trial court found defendant to be in violation of probation in Case 1, and executed the sentence of two years to be served in the Riverside County jail and to run concurrent with the sentence in Case 2. For the probation violation, defendant was awarded credit for time served of 292 actual days plus 163 days under section 4019, for a total of 455 days credit. Counsel objected to this calculation; it was overruled.
2. Case 2
The trial court sentenced defendant to custody for a total term of five years, to be served in the Riverside County jail under section 1170, subdivision (h), and to run concurrent to the sentence in Case 1. The trial court imposed the middle term of two years on count 1, and three years to run consecutive for the enhancement. The trial court executed the two-year term for count 1, but suspended execution of the three-year term granting supervised release under section 1170, subdivision (h)(5). Therefore, defendant must serve two years in county jail on both cases, then complete his sentence on Case 2 with three years of supervised release.
In Case 2, defendant was awarded credit for time served of 109 actual days, plus 54 days under section 4019, for a total of 163 days credit. Counsel objected to this calculation; it was overruled.
On November 16, 2011, defendant filed a notice of appeal in both cases. On appeal, defendant claimed that the trial court erred in calculating his section 4019 conduct credits. In an opinion filed on February 5, 2013, we modified defendant's conduct credits. Moreover, in the appeal, the People claimed that the trial court miscalculated defendant's actual custody credit in Case 1. We affirmed the trial court's award of custody credit in Case 1.
After the issuance of our opinion, defendant filed a petition for rehearing on February 21, 2013. On March 5, 2013, we granted the petition and directed the parties to file supplemental letter briefs addressing the issue raised in the petition.
Our opinion filed February 5, 2013, has been vacated since we granted defendant's petition for rehearing. This opinion will serve as the new opinion.
For the reasons set forth post, we hold that we lack statutory authority to reduce defendant's mandatory supervised probationary period on appeal.
II.
STATEMENT OF FACTS
On January 5, 2010, defendant was searched by officers who found a glass pipe normally used to smoke methamphetamine,which contained burnt residue, and 5.1 ounces of methamphetamine.
On April 28, 2011, officers found 10.5 grams of methamphetamine, packaging, and a scale during a search of defendant's residence.
III.
ANALYSIS
A. First Opinion
B. New Issue: Modification of the Mandatory Supervised Probationary Period
See footnote *, ante.
After we determined that defendant was entitled to additional custody credits, he filed a petition for rehearing. In the petition, defendant contended that “[a]ny excess days in custody that have been served by [defendant] should be credited against the term of his mandatory supervision pursuant to subdivision (h)(5) of section 1170.” We granted defendant's petition and requested additional briefing from the parties. We directed the parties to address the following issue:
“Should the amount of time defendant was incarcerated, in excess of the period he would have spent had all custody and conduct credits to which he was entitled been applied, be deducted from his mandatory probation supervision under Penal Code section 1170, subdivision (h)(5)? Specifically, does the holding of In re Ballard (1981) 115 Cal.App.3d 647, 171 Cal.Rptr. 459 apply to adjust the release from mandatory supervision under Penal Code section 1170, subdivision (h)(5) as it does to adjust the release from parole?”
In this case, defendant was sentenced under “Realignment” as set forth in section 1170, subdivision (h). The portion of that section pertaining to “mandatory supervision” states, in pertinent part:
“For a term as determined in accordance with the applicable sentencing law, but suspend execution of a concluding portion of the term selected in the court's discretion, during which time the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceedings to revoke or modify mandatory supervision under the subparagraph shall be conducted pursuant to subdivisions (a) and (b) of Section 1203.2 or Section 1203.3. During the period when the defendant is under such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court.” (§ 1170, subd. (h)(5)(B)(i), italics added.)
By its own terms, section 1170, subdivision (h)(5)(B)(i), does not permit the remedy defendant seeks on this appeal. First, the section expressly states that the period of supervision is mandatory and may not be terminated early unless the court orders so under section 1203.2, subdivisions (a) and (b) (revoking probation) or section 1203.3 (modifying or terminating probation). There is nothing in the statute permitting modification of the probation period under the circumstances presented here. Should defendant seek to have the mandatory supervision period shortened, he may file a motion in the trial court under section 1203.3.
Moreover, nothing in section 1170, subdivision (h), allows credits to be applied toward the sentence on mandatory supervision: “During the period when the defendant is under such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court.” (§ 1170, subd. (h)(5)(B)(i), italics added.)
In this case, defendant accrued an excess of section 4019 credits while in custody; these credits do not apply to reduce the mandatory supervision under section 1170, subdivision (h).
Defendant, however, relies on In re Ballard, supra, 115 Cal.App.3d 647, 171 Cal.Rptr. 459, to support his position. There, the petitioner sought to have the excess time he spent in custody credited toward his parole term. The court addressed the issue as follows:
“A defendant's prison release date is calculated by reference to the term of imprisonment assigned by the sentencing court (Pen.Code, § 1170 et seq.) or by the Board of Prison Terms (Pen.Code, § 1170.2), reduced by any applicable section 2900.5 credits for presentence time actually served, Sage credits for good conduct and participation while in presentence custody, and credits for good conduct and participation while in prison (‘section 2931 credits'; Pen.Code, §§ 2930– 2932). Should application of a credit to which the defendant is entitled be delayed until after his prison release date calculated without regard to the credit, or until so late in his prison term that the credit to be applied exceeds the amount of time remaining to be served a defendant will obviously be prejudiced: his actual prison release date will be later than the prison release date to which the credit, timely applied, would have entitled him. In such situations unless some adjustment is made, the delay in releasing the person from prison will delay his release from parole. [¶] Respondent suggests that such an adjustment can be made by deducting from his parole term the excess of the time petitioner actually spent in prison beyond the time he should have spent had all credits, including Sage credits, been timely applied. Petitioner agrees.” ( Id. at p. 649, 171 Cal.Rptr. 459, fn.omitted.)
People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874 (Sage ).
The court then went on to state that “[d]eductions from the parole term are expressly authorized in other situations: section 2900.5 credits may be applied against either or both of the period of incarceration and the parole period (Pen.Code, § 2900.5, subds. (a), (c); cf. In re Sosa (1980) 102 Cal.App.3d 1002, 1006, 162 Cal.Rptr. 646), and where a defendant's prison release date has been delayed by administrative proceedings relevant to whether section 2931 credits should be denied, and the matter is resolved in his favor, the delay is deducted from the parole period. (Pen.Code, § 2932, subd. (d).) Fundamental fairness requires that where misapplication of Sage credits has contributed to delay a prisoner's release date, those credits must be used to adjust the parole release date. Respondent's suggestion would have this effect. We approve it.” (In re Ballard, supra, 115 Cal.App.3d at p. 650, 171 Cal.Rptr. 459.)
Defendant claims that we should follow In re Ballard, supra, 115 Cal.App.3d 647, 171 Cal.Rptr. 459, and “that any excess days in [local] custody that have been served as a result of [defendant] having completed his term in custody prior to this court's opinion awarding him additional credits be credited against the term of his mandatory [probation] supervision pursuant to subdivision (h)(5) of section 1170.” By analogy, it appears that fairness would also dictate that where misapplication of section 4019 credits has contributed to delaying a prisoner's release date from local custody, those credits must also be used to adjust the probation release date. We, however, cannot render a decision by analogy since the statutes pertaining to parole release dates and probation release dates are different.
As the People have summarized, in In re Ballard, supra, 115 Cal.App.3d 647, 171 Cal.Rptr. 459, “[t]he court found [that] it had statutory authority to deduct credits from the term of parole under Penal Code section 2900.5. (Id. at p. 650, 171 Cal.Rptr. 459.)” Section 2900.5, subdivision (c), states that a “ ‘term of imprisonment’ ” includes “any period of imprisonment imposed as a condition of probation or otherwise ordered, ... and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute....” Thus, under section 2900.5, credits may be applied to the parole period.
In this case, however, the reasoning in In re Ballard, supra, 115 Cal.App.3d 647, 171 Cal.Rptr. 459, does not apply because no statutory authority exists to reduce a defendant's mandatory supervision period from probation, not parole, with excess credits. Here, unlike In re Ballard, defendant was sentenced to local custody and then released on mandatory supervised probation. Section 2900.5 is inapplicable. As provided ante, nothing in section 1170, subdivision (h), allows for early termination of probation except as provided under sections 1203.2 and 1203.3. Defendant's argument to reduce his mandatory supervision time is, therefore, denied. Although we are sympathetic to defendant's argument, it is up to the Legislature to amend the law to allow us to apply section 4019 credits to reduce a mandatory supervised probationary period.
Defendant, however, is not without a remedy. As provided ante, defendant can file a motion in the trial court under section 1203.3 to modify his term of probation. Or, in the alternative, defendant can file a motion under section 2900.5, subdivision (a), to allow excess time spent in custody, including section 4019 credits, to be applied toward base fines and restitution fines at a rate of not less than $30 per day.
IV.
DISPOSITION
In case No. INF10000212, the trial court is directed to correct the October 24, 2011 minute order and the abstract of judgment filed October 26, 2011, to reflect an aggregate award of 576 days (consisting of 16 days of actual custody and eight days of conduct credit for days served prior to January 25, 2010; and 276 days of actual custody and 276 days of conduct credit for days served after January 25, 2010). Moreover, in case No. INF1101571, the trial court is directed to correct the October 24, 2011 minute order to reflect an aggregate award of 218 days (consisting of 109 days of actual custody and 109 days of conduct credit).
The superior court clerk is directed to forward copies of the corrected minute orders and abstract of judgment to the appropriate agencies and entities.
In all other respects, the judgment is affirmed.
We concur:
804 MILLER, J. CODRINGTON, J.