Opinion
H035847
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO REYES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS091542)
By this appeal defendant Francisco Reyes challenges various aspects of a sentence imposed after the trial court revoked probation and sentenced him to state prison. He contends that the trial court erred by (1) imposing a restitution fine exceeding the amount imposed when probation was originally granted, (2) denying full retroactive effect to statutory amendments increasing the amount of credit granted for presentence confinement; and (2) calculating the number of days of actual presentence confinement. We find merit in the first point and the third, which respondent concedes. We will therefore direct certain modifications to the judgment and affirm the same as so modified.
BACKGROUND
On June 14, 2009, a complaint was filed charging defendant with residential burglary in violation of Penal Code section 459. On July 2, 2009, defendant entered a plea of no contest to felony vandalism (§ 594, subd. (b)(1)). On August 20, the court suspended imposition of sentence and placed defendant on probation. Among the recommended conditions of probation that the court incorporated in its order was a requirement that defendant "[p]ay a restitution fine of $200.00 to the State Restitution Fund. (PC 1202.4(b))."
All further statutory references are to the Penal Code.
On October 14, 2009, defendant was charged with an alleged violation of probation based upon a failure to obey all laws as reflected in a new prosecution for misdemeanor domestic violence. On December 2, defendant admitted the violation. The court revoked and reinstated probation with terms modified to require defendant to serve 320 days, with credits of 228 days.
On April 6, 2010, a second petition to revoke probation was filed, alleging that defendant had not communicated with the probation department following his release on March 23. Defendant admitted the violation on June 24 and the matter was set for reception of a supplemental probation report on July 14. Defendant then requested and received a continuance to July 21. On that date the court revoked and terminated probation and imposed a prison term of two years. The court allowed credit of 265 actual days plus 178 days for conduct, for a total of 443 days. In doing so the court followed this court's decision in People v. Hopkins (2010) 184 Cal.App.4th 615, of which the Supreme Court has granted review on July 28, 2010, S183724. The court also directed that defendant pay a restitution fine of $400.00 to the State Restitution Fund, plus a suspended fine of equal amount pending successful completion of parole.
Defendant filed this timely appeal.
DISCUSSION
I. Restitution Fine
One of the conditions of probation originally imposed on defendant on August 20, 2009, was that he pay a restitution fine of $200 under section 1202.4, subdivision (b) (§ 1202.4(b)). When the trial court revoked probation and imposed a prison sentence on July 21, 2010, it imposed a restitution fine of $400. Defendant argues that to the extent this fine exceeded the fine as originally imposed, it was an unauthorized sentence and must be stricken under People v. Chambers (1998) 65 Cal.App.4th 819, 822-823, which held that the trial court lacked authority to impose a restitution fine of $500 upon revoking probation, having previously imposed a fine of $200 when placing the defendant on probation. The court further held that the sentence was unauthorized so as to be vulnerable to challenge on appeal despite the absence of an objection in the trial court. (Id. at p. 823; see People v. Scott (1994) 9 Ca1.4th 331, 354.)
Respondent concedes that the legal principles cited by defendant are correct, but contends that they are inapplicable because the $200 increase in the fine might be attributable to a separate offense, and must be presumed attributable to that offense in the absence of affirmative record evidence to the contrary. Respondent notes that defendant was convicted in 2008 on a misdemeanor charge of cultivating marijuana, and that section 1202.4(b) required the trial court to impose a fine between $100 and $1,000 in connection with that conviction. Since the record on appeal does not include relevant orders or transcripts from that case, respondent contends, we must presume in support of the judgment that the additional $200 imposed here is based on that conviction, not the conviction of felony vandalism now before us. Respondent suggests that we correct the record to reflect not a single $400 fine but two separate $200 fines, as well as two equal, conditional parole revocation fines under section 1202.44. (See People v. Guiffre (2007) 167 Cal.App.4th 430, 434.)
This argument cannot sustain the order under scrutiny. Nothing in the record suggests that any of the court's sentencing orders is referable in any sense to the cultivation conviction. The court never so much as alluded to that matter. The court referred to a "misdemeanor case" several times at sentencing, but this was the domestic violence case, not the cultivation case to which respondent would have us attribute the increased fines. The marijuana case is mentioned only five times in the entire record: Defense counsel referred to it twice, by number only, in written motions to trail or continue the first probation revocation hearing; and the probation officer referred to it three times as part of defendant's criminal history and as evidence of his poor performance on probation, since it was one of two cases in which he was "serving conditional grants of probation" when he engaged in other misconduct. The latter references appeared in the two earlier probation reports; there was no reference to the marijuana case in the probation report prepared specifically for the sentencing proceedings now under review. That report contained recommendations for sentencing on the domestic violence case, but did not suggest that the court should or could impose a fine or take any other action with reference to the marijuana case.
Respondent cites these same materials in support of the supposed fact that probation in the marijuana case "was extended for three years on November 12, 2009," when the revocation petitions alleging domestic violence were sustained. This assertion is not only unsupported by the record, but seemingly contrary to it. As we read the record, the revocation petition based on the domestic violence charges was sustained on December 2, 2009. This record contains no order dated November 12. Nor does anything in this record give any account of the proceedings in that matter or any indication of the disposition there beyond the fact that defendant was placed on probation.
The written documents embodying the court's judgment, including the challenged fine, cannot be understood to incorporate or otherwise reflect the sentence imposed in any other case. They bear the case number of one matter only—the felony vandalism case. They say nothing about any misdemeanor case—even the domestic violence case. The sentence in that case is presumably reflected in separate orders filed under its own case number. The same is undoubtedly true of the marijuana case.
In sum, there is simply no reason to suppose that the fine here had anything to do with the marijuana case. If the court meant to take some action with reference to that case under the aegis of the present judgment, it should—and we think would—have said so. A sentence that is unauthorized on its face cannot be upheld on the rationale that it might be referable to a completely distinct matter to which the sentencing court does not so much as allude. The appellate presumption of correctness, on which respondent's entire argument depends, cannot require or authorize us to indulge in fanciful speculations utterly divorced from the actual contents of the record. The presumption is designed to make appellants responsible for ensuring the adequacy of the record to determine whether a challenged action by the trial court constituted error. We do not require the appellant to anticipate and affirmatively refute every extrinsic circumstance that might conceivably cure a facially erroneous order. If respondent wished to bring up part of the record in another case to sustain the present judgment, procedures existed for it to do so. Having elected not to, it cannot fault appellant for failing to rebut a mere surmise.
We conclude that the $200 increase in the fine was unauthorized and must be stricken.
II. Section 4019
Defendant contends that the trial court erred by failing to grant him presentence custody credits at the rate prescribed by section 4019 (§ 4019), subdivisions (b)(1), (c)(1), and (f), as in effect from January 25, 2010, to September 28, 2010.
Prior to January 25, 2010, a defendant held in county jail prior to sentencing would typically earn six days' credit (i.e., reduce his remaining time by six days) for each four days actually served—in effect, a ratio of three days earned for two days served. (Former Pen. Code, § 4019, subds. (b), (c), (f); Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, the statute was amended to grant four days' credit for every two days served—in effect, a two-to-one ratio. (Former Pen. Code, § 4019, subds. (b)(1), (c)(1), (f); Stats. 2009 3d Ext. Sess., ch. 28, § 50.) Effective September 28, 2010, the statute was again amended to restore the former three-for-two formula as to all prisoners. (Stats. 2010, ch. 426, § 2.) By its terms, however, that amendment applies only to offenses committed after its adoption. (Id., subd. (g).)
The increased credits were unavailable to some classes of prisoners, but it is not suggested that defendant belonged to any of them. (Id., subds. (b)(2), (c)(2), (f).)
Defendant contends that he was entitled one-for-one credits for every day he spent in local custody prior to sentencing. Insofar as this argument depends on applying the January 2010 version of section 4019 to time served prior to its effective date, it has been addressed by a great many Court of Appeal decisions, many of which are currently pending before the California Supreme Court, mostly on a "grant-and-hold basis." This court has consistently denied such retroactive effect to the provision in question and will do so again here. We therefore find no error in the trial court's application of section 4019.
The trial court did allow credit at the increased rate for the time served after the effective date of the amendments. No error is asserted on this point, and no prejudicial error could be asserted by defendant. Respondent expressly declines to challenge this allowance, taking the position that defendant was entitled to the increased rate for time served after January 25.
III. Section 2933
The statute effecting the September 2010 amendments to section 4019 also amended section 2933, subdivision (e)(1) (§ 2933(e)(1)), which also appears to address credit against a prison sentence for time in local custody. As pertinent here, it provides that "a prisoner sentenced to the state prison . . . for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail . . . from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner." Defendant contends that this language grants a state prisoner two days against his sentence for each day he served in local custody. As with section 4019, defendant contends he is entitled to the benefit of this statute even though he committed his offense, and served his local time, before its enactment.
"(e)(1) Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner.
"(2) A prisoner may not receive the credit specified in paragraph (1) if it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by, or has not satisfactorily complied with the reasonable rules and regulations established by, the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"(3) Section 4019, and not this subdivision, shall apply if the prisoner is required to register as a sex offender, pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5." (Pen. Code, § 2933, subd. (e), as amended by Stats. 2010, ch. 426, § 1.)
We are not sure that either party offers a coherent account of the meaning and intended application of the September amendments to section 2933 as they affect credits against a prison sentence. Defendant states that they create "an exception to the conduct credit rules of section 4019." But he does not explain the scope or purpose of the supposed exception. If read as he apparently reads them, the amendments completely supersede section 4019 with regard to local custody credits against a state prison sentence. He suggests that such an intention is reflected in the introductory phrase, "[n]otwithstanding Section 4019."
Respondent contends that the amendments have no effect on a sentencing court's determination of credits. According to respondent, "The statute says nothing about the calculation of presentence conduct credits" by the trial court. Instead, writes respondent, "that statute only authorizes the calculation, by the Department of Corrections, of: (1) credit for days spent in actual local custody before sentencing to state prison; and (2) credit for good conduct or work accrued while in prison." (Italics respondent's.) But this view is difficult to reconcile with the actual language of section 2933(e)(1), and particularly the second clause, which grants credit for local custody "from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner." Respondent cites cases for the proposition that section 2933 is intended to govern the calculation by state correctional authorities of a state prisoner's prescribed time in confinement. (See People v. Johnson (2004) 32 Cal.4th 260, 263-266; People v. Buckhalter (2001) 26 Cal.4th 20, 40-41.) But those cases were decided long before the language here at issue was inserted, and shed little if any light on its meaning or purpose.
Such legislative history as is readily available online sheds little light on the problem. The apparent intent of the September 2010 amendments, according to these materials, was to roll back the January 2010 liberalization of credits as it affected sentences to be served in local custody. A Senate report quotes the author as stating that the amendment was intended to remedy an "unintended effect" of the January 2010 enhancements: they interfered with the "community corrections model" underlying other recent legislation, which model depended in part on " 'judges using county jail time as an intermediate sanction short of prison." (Senate Rules Committee, Office of Senate Floor Analyses, rpt. on Sen. Bill 76 (2009-2010 Legis. Sess.), as amended Aug. 20, 2010, p. 3, <http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0051-0100 /sb_76_cfa_20100825_101841_sen_floor.html> (as of Sept. 14, 2011).) The January amendments had "reduc[ed] available jail time," the author continued, as a result of which "judges could be faced with an inadequate custodial alternative to state prison." (Ibid) This was highly undesirable: "The last thing we want to do is fast-track offenders out of community corrections into prison." (Ibid.) The amendments to sections 4019 and 2933 "addresse[d] this concern by restoring the credits available for jail inmates under the law prior to the enactment of SBx3 18." (Ibid.)
In other words, apparently, the January 2010 amendments, as applied to persons sentenced to local custody, granted too much credit in some cases, depriving sentencing courts of the ability to impose what they considered a local sentence of suitable length. The amendments could thus force courts in some cases to impose a state prison term, in derogation of the "community corrections model." The only stated purpose of the September 2010 amendments was to remedy this perceived flaw.
This would come about, presumably, where the court felt that a defendant should spend a certain number of days in actual confinement but the only way to accomplish that result, after taking credits into account, would be to impose a prison term servable only in state prison. No concrete examples appear in the legislative history, and we have not attempted to create one hypothetically, but assume for purposes of discussion that such an obstacle really existed. In any event, it is enough that the Legislature believed it to exist, and was motivated to address it by adopting the amendments that now concern us.
Viewed against this background it appears entirely likely that the September 2010 amendment to section 2933(e) was intended only to preserve to state prisoners the liberalized local custody credit formula that had been adopted as to all local prisoners in January but repealed in September as to persons serving sentences locally. If so the apparent effect of section 2933(e)(1) is, as defendant contends, to require the trial court to employ the two-earned-for-one-served formula in calculating presentence custody credits for defendants it is sentencing to state prison.
This case, however, does not require us to attempt to finally determine the precise operation of section 2933(e)(1) or its interaction with section 4019. Defendant offers no distinct reason for applying the September amendments to section 2933(e) to his case. He relies on the same arguments he makes with respect to section 4019, and offers no reason to distinguish between the two for purposes of the retroactivity analysis. Since we have repeatedly declined to apply section 4019 retroactively, and pending further guidance from the Supreme Court, we decline to reach a different result with respect to section 2933(e)(1). Accordingly, we find no basis in that statute to reverse or modify the judgment.
IV. Calculation Error
Defendant also contends that the trial court miscalculated his actual time in custody, first by overlooking the fact that he was in custody on June 14, 2009—a day earlier than the court's calculation recognized—and then by overlooking the seven days of presentence confinement between the time the probation officer calculated his credits (July 15, 2010) and the day defendant was sentenced (July 21, 2010). Respondent concedes that defendant is entitled to eight additional days of credit.
DISPOSITION
The judgment is modified to (1) reduce the fines imposed under sections 1202.4, subdivision (b), and 1202.45, from $400 to $200; and (2) increase the credit for time spent in custody to show 459 total days of which 273 are actual local time and 186 are local conduct credits. As so modified, the judgment is affirmed.
RUSHING, P.J. WE CONCUR:
DUFFY, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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