Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD221721, SCN261637 Charles Rogers, Judge.
HALLER, Acting P. J.
Under negotiated plea agreements, David Robosson pled guilty in two separate cases and the court imposed an aggregate four-year sentence. Robosson contends the court erred because it failed to impose a sentence reflecting the court's intent that the four-year sentence begin on June 30, 2009, the initial sentencing date on the first case. He maintains the court improperly added four months and 21 days to the sentence. We conclude the court erred in failing to award Robosson actual custody credits for the time served from the initial sentencing date to the resentencing date.
The court also ordered Robosson to pay four $30 fines under Government Code section 70373 (section 70373). Robosson contends these fines were improper because section 70373 applies only to crimes under the Vehicle Code. This contention is without merit.
The Attorney General contends we have no jurisdiction over Robosson's appeal because his handwritten notice of appeal did not specifically state he would be challenging his sentence. However, we are required to liberally construe notices of appeal. (Cal. Rules of Court, rule 8.304.) Under this rule, Robosson's notice was sufficient to identify his intent to challenge his sentence and the section 70373 fine.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2009, the district attorney charged Robosson with various crimes relating to burglary and identity theft (case A). On June 2, 2009, Robosson pled guilty to two of the charges (counts 1 and 3). The guilty plea was in exchange for a stipulated two-year sentence and the dismissal of the remaining counts. On June 30, 2009, the court imposed the stipulated two-year sentence (a two-year term for count 1 and a concurrent two-year term for count 3), and ordered Robosson to pay victim restitution and other fines.
Nine days later, after Robosson had begun serving his two-year sentence, the district attorney charged Robosson in a separate complaint with crimes pertaining to counterfeiting (case B). On September 10, 2009, Robosson pled guilty to the two charged counts (counts 32 and 33), and admitted two alleged prison priors (Pen. Code, § 667.5, subd. (b)). This plea was in exchange for the court's indication that it would impose a two-year sentence consecutive to Robosson's two-year sentence in case A for a total term of four years for both cases. The court stated it would impose the combined sentence consistent with California Rules of Court, rule 4.452 (rule 4.452), which requires aggregate sentences under certain circumstances.
The complaint contained 34 counts, but only counts 32 and 33 involved Robosson.
Rule 4.452 states: "If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations: [¶] (1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case. [¶] (2) The judge in the current case must make a new determination of which count, in the combined cases, represents the principal term, as defined in section 1170.1(a). [¶] (3) Discretionary decisions of the judges in the previous cases may not be changed by the judge in the current case...."
On November 20, 2009, the court sentenced Robosson to a four-year prison term as follows: (1) the middle term of two years for count 1 in case A; (2) concurrent two-year terms each for count 3 in case A, count 32 in case B, and count 33 in case B; and (3) a consecutive one-year term for each of the two admitted prison priors in case B. The court left undisturbed the restitution fees originally imposed in case A, and ordered several additional fines in both cases, including a $30 court security fee for each of the four counts pursuant to section 70373.
At the sentencing hearing, the court stated it was imposing a single sentence under rule 4.452 as a "result of combining all the counts from the previous case and the current case." But the court also repeatedly stated its understanding that the Department of Corrections and Rehabilitation (Department of Corrections) would treat this sentence as if Robosson began serving the aggregate four-year sentence on the initial sentencing date (June 30, 2009). The court made these comments primarily in the context of discussing credits. For example, the court stated that "since we're actually imposing a single aggregate term and we're imposing it, in a sense, as of June 30, 2009, ... I'll make sure the minutes say he's to get credit for every day and all conduct credits since then, and it's up to the Department of Corrections to figure that out in determining his release date." The court also stated: "In order to try to make the record real clear in case there is any snafu on this, I'm also going to specify that I further find that he is still serving the term in the A case as of today.... [¶] Moreover, I find that he has been continuously in custody serving that term. I therefore award no actual or custody credits on the B case. I do that, in part, because he doesn't get any if he's still serving a term on another case. But he gets those credits against the total term that's imposed. [¶] I therefore find that he is still serving the term in the A case.... [¶] I do find that he has been in continuous custody since the sentencing date on the A case up to the present date, and I find that his actual custody credits ultimately calculated by the... Department of Corrections... should include those days plus any appropriate conduct credits determined by [the Department]."
In December 2009, Robosson filed a notice of appeal.
In January 2010, Robosson wrote to the trial court stating he had understood that, under the plea agreement and negotiated sentence, his four-year term was to be calculated from the first June 30 sentencing date, but it appeared that prison officials were calculating his term from the second (November 20) sentencing date, and the officials were not giving him any credit for his prison time served between June 30 and November 20. Robosson stated he had written to defense counsel, but counsel had not responded to his letter.
The court responded to Robosson by letter, stating that it had intended to impose a four-year term beginning on June 30, and therefore any time served after that date would not count as presentencing credit, and would instead count towards Robosson's release date. In this regard, the court stated: "[T]he credits based on time you served after the original sentencing in [case A] are considered prison time, not pre-sentence credit. You are entitled to receive those credits, of course, but in my view the court's role is limited to calculating the presentence credits as of the date you were sentenced on the old case. The [Department of Corrections] should then include all time spent in custody since the original sentencing in determining your release date on the new, four-year term. [¶] Feel free to show this letter to the [Department] if it assists you." (Italics added.)
In March 2010, the court issued an order awarding unrelated presentencing credits for time served before June 30, 2009, but reiterated its denial of credit for time served after that date. In so ruling, the court stated that June 30, 2009 "is the date the term began, and that every day of custody served in the Department since that date is to be included by the [Department of Corrections] in setting defendant's release date...." (Italics added.) In declining to award credits for time after June 30, the court stated it had no authority to award post-sentencing credit. In this regard, the order stated: "[D]efendant has been in the custody of the Department since his sentencing date in the 'A' case (June 30, 2009), serving the term imposed in that case.... [T]he court believes that the proceeding on November 20, 2009, is not a 'resentencing, ' but instead is, as stated in Rule 4.452, the pronouncement of 'a single aggregate term.' The date of defendant's commitment to the Department remains unchanged, that is, June 30, 2009."
The final abstract of judgment provides for a four-year term (two years for count 1 in case A and two years for the enhancements in case B, with the other two-year sentences to run concurrent).
DISCUSSION
I. Intended Four-Year Sentence
Robosson challenges his four-year sentence on the basis that it is inconsistent with the court's intentions and the negotiated plea agreement.
A. Certificate of Probable Cause
The Attorney General contends Robosson is barred from raising issues pertaining to his negotiated plea agreement because he did not obtain a certificate of probable cause.
A certificate of probable cause is required to challenge the validity of matters resolved in a plea agreement. (Pen. Code, § 1237.5; People v. Buttram (2003) 30 Cal.4th 773, 780-781; People v. Panizzon (1996) 13 Cal.4th 68, 74-76.) However, no certificate is required for an appeal based on an alleged violation of the plea agreement because this claim seeks to enforce, not attack, the plea agreement. (See People v. Johnson (2009) 47 Cal.4th 668, 679, fn. 5; People v. Buttram, supra, 30 Cal.4th at p. 790; People v. Rabanales (2008) 168 Cal.App.4th 494, 500-501.) Moreover, no certificate is required for challenges to the trial court's discretionary sentencing choices left open by the plea agreement. (People v. Buttram, supra, 30 Cal.4th at pp. 777, 790-791.)
In this case, Robosson is not challenging the validity of his guilty pleas. Instead, he is seeking to implement the negotiated sentence and the court's expressed intention to sentence him to a four-year term beginning on June 30, 2009. This appellate challenge does not require a certificate of probable cause.
B. Effective Imposition Date of Imposed Sentence
Robosson contends that although the trial court imposed the agreed-upon four-year sentence, the manner in which it imposed the sentence was inconsistent with the court's intent and the intended negotiated disposition.
We agree. The record establishes the court intended to impose the four-year combined sentence for cases A and B to start on June 30, 2009. However, the actual sentence imposed, as reflected in the abstract of judgment, provides for a four-year total commitment time beginning on November 20, 2009, the date of pronouncement of the sentence.
In sentencing Robosson, the court expressed its understanding that the November 20 sentence was not a "resentencing, " and therefore the date of sentencing for purposes of calculating the four-year sentence would remain June 30. As the parties agree, this assumption was wrong. The new sentencing date for purposes of the Department of Correction's release date calculation was the date the new aggregate sentence was imposed. (See Pen. Code, § 1170.1, subd. (a); rule 4.452.)
Penal Code section 1170.1, subdivision (a), and rule 4.452 require the trial court to pronounce a single aggregate term when imposing a determinate sentence consecutive to any prior determinate sentence or sentences, whether previously imposed by that court or a different court. " 'If a determinate sentence is imposed pursuant to [Penal Code] section 1170.1(a) consecutive to one or more determinate sentences imposed previously.... [¶] (1) the sentences on all determinately sentenced counts... shall be combined as though they were all counts in the current case.' " (People v. Baker (2002) 144 Cal.App.4th 1320, 1328; see also In re Reeves (2005) 35 Cal.4th 765, 772-773.)
This resentencing requirement creates an exception to the general rule prohibiting a court from imposing a new sentence once a defendant has commenced an earlier sentence. (See People v. Begnaud (1991) 235 Cal.App.3d 1548, 1551-1553.) A resentencing generally establishes a new sentencing date from which prison officials determine the release date. To calculate each inmate's earliest release, the Department of Corrections "starts with the date of sentencing, adds the total prison term imposed, and subtracts any presentence credit awarded." (In re Tate (2006) 135 Cal.App.4th 756, 759, italics added.) Moreover, as this court recently held, when sentencing a defendant to a single aggregate term under rule 4.452, a trial court must ensure the abstract of judgment includes credit for all time served, including time served between the first sentencing date and the resentencing date. (See People v. Saibu (2011) 191 Cal.App.4th 1005, 1010-1013.)
Because People v. Saibu, supra, 191 Cal.App.4th 1005 was filed after briefing and oral argument in this case, we provided the parties the opportunity to brief the impact of Saibu on the issues in this case.
To properly exercise judicial discretion, "a court must know and consider all material facts and all legal principles essential to an informed, intelligent, and just decision." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) The record is clear that the court intended to impose a four-year total sentence beginning on June 30, 2009. However, the sentence actually imposed began on November 20, which increased the total period of commitment by almost five months. Moreover, the court erroneously believed it did not have the authority to amend the abstract of judgment to include credit for time served between the initial sentencing date and the resentencing date. On this record, the court erred.
In Robosson's appellate briefs, appellate counsel identified various ways in which the trial court could have exercised its discretion within the applicable rules to achieve the desired four-year total term of commitment from the June 30 date. In supplemental briefs, Robosson's counsel argued that the error can also be remedied through an award of credits to Robosson from the time of the first sentencing (June 30) to the time of the resentencing (November 20). Although in its original briefing and at oral argument the Attorney General opposed any modifications to the sentence, in its supplemental briefing the Attorney General now concedes Robosson is entitled to actual custody credit for all time spent in the Department of Corrections custody up to the resentencing date.
We agree with the parties that Robosson is entitled to these custody credits. We thus order the trial court to modify Robosson's abstract of judgment to reflect credit for the actual time Robosson served in the custody of the Department of Corrections from June 30, 2009 to November 20, 2009.
With respect to Robosson's arguments pertaining to his right to conduct credits during this time period, the Department of Corrections is the entity responsible for calculating and awarding these credits.
II. Section 70373
Robosson contends the court erred when it imposed a $30 court facilities fee for each of his four convictions pursuant to section 70373, subdivision (a)(1).
Although Robosson did not raise this issue in the proceedings below, we exercise our discretion to address the contention because it raises solely an issue of law. (See People v. Breazell (2002) 104 Cal.App.4th 298, 305; People v. Jungers (2005) 127 Cal.App.4th 698, 702.)
Section 70373, subdivision (a)(1) states: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any other local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction." (Italics added.)
Robosson argues this statute applies "only to convictions under the Vehicle Code and not under the Penal Code." Under his theory, the phrase italicized above - "involving a violation of a section of the Vehicle Code" - modifies and limits the words "criminal offense." Robosson asserts that the prior "including a traffic offense" phrase is an independent clause separately describing one type of criminal offense that is included within the scope of the statute. The Attorney General counters that the "involving a violation of a section of the Vehicle Code" clause does not limit the types of "criminal offenses" to which the fee applies, and instead it is merely part of a lengthy subordinate clause clarifying which Vehicle Code offenses the statute covers and does not cover. Thus, under the Attorney General's interpretation, the fee applies to all offenses, even those that do not arise from the Vehicle Code.
Read by itself, section 70373, subdivision (a)(1) is not a model of clear writing. However, in construing a statute to determine legislative intent, we do not read statutory language in isolation or solely as a grammatical exercise. Statutes must be interpreted in context, with an eye to the statutory scheme as a whole. (Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 422.) A court must "read each statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain its effectiveness." (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 440.) If the statute is ambiguous, "we will choose the construction that comports most closely with the Legislature's apparent intent, and endeavor to promote rather than defeat the statute's general purpose, and avoid a construction that would lead to absurd consequences." (Ibid.)
Under these principles, the Attorney General's interpretation is correct. When the statutory language is viewed in a reasonable, common-sense manner and in light of the statutory purpose, it is apparent the court facilities fee applies to all criminal convictions (except for the specified parking offenses).
Enacted in 2008, the code section expressly states that the purpose of the $30 fine is to "ensure and maintain adequate funding for court facilities." (§ 70373, subd. (a)(1).) This legislation was enacted as part of a larger budgetary measure recognizing the "immediate and critical" need for court facilities construction funding. (Gov. Code, § 70371.5, subd. (f)(2); People v. Phillips (2010) 186 Cal.App.4th 475, 479.) To achieve this objective of raising funds to pay for these critically needed projects, the Legislature must have intended the fee would apply to all convictions, and not merely the small portion of criminal convictions arising from the Vehicle Code. Moreover, if the Legislature had intended to require the fee only for persons convicted of Vehicle Code violations, it could have easily stated this intent in the first portion of the code section. By instead beginning the operative portion of the code section with the words "an assessment shall be imposed on every conviction for a criminal offense" the most reasonable interpretation is that it applies to all such criminal offenses. (§ 70373, subd. (a)(1), italics added.)
This conclusion is supported by the statute's legislative history. The Senate Floor Analysis of the underlying senate bill states that: "In order to ensure and maintain adequate funding for court facilities, [the proposed legislation] imposes an assessment of $30 on every felony or misdemeanor criminal conviction and $35 for every criminal infraction, including traffic offenses, but not including parking offenses, and $35 for every criminal infraction, including traffic offenses, but not including parking offenses, and the amount collected is to be deposited [in a specified court fund]." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1407 (2007-2008 Reg. Sess.) as amended Aug. 29, 2008, p. 6, italics added.) This explanation is not ambiguous and reflects a clear intent to impose the $30 fee on all criminal offenses, and not merely Vehicle Code offenses. (See People v. Broussard (1993) 5 Cal.4th 1067, 1075 [to determine legislative intent it is appropriate to consider the floor analysis of a bill].)
Further, although no court has addressed this particular argument in a reported decision, the courts have consistently assumed the statute applies to non-Vehicle Code criminal convictions. (See People v. Woods (2010) 191 Cal.App.4th 269, 271-274; People v. Phillips, supra, 186 Cal.App.4th at pp. 476-479; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492; People v. Smith (2009) 178 Cal.App.4th 475, 482.) We find this assumption to be fully supported.
Robosson argues that because the statute is ambiguous on its face, we should apply the "rule of lenity, " which requires "ambiguous criminal laws 'be interpreted in favor of the defendants subjected to them'...." (See United States v. Santos (2008) 553 U.S. 507, 514; People v. Avery (2002) 27 Cal.4th 49, 58.) However, this rule is " ' "not an inexorable command to override common sense and evident statutory purpose." ' " (People v. Anderson (1987) 43 Cal.3d 1104, 1146.) As Robosson recognizes, the rule of lenity " 'is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable.' " (People v. Avery, supra, 27 Cal.4th at p. 58.)
Section 70373, subdivision (a)(1) specifically states its purpose is to "ensure and maintain adequate funding for court facilities, " and refers to a mandatory assessment on "every conviction for a criminal offense." Although the code section could have been written more clearly, the Attorney General's interpretation is the most reasonable. Thus, the rule of lenity does not apply. True ambiguities should be resolved in a defendant's favor, but "an appellate court should not strain to interpret a penal statute in defendant's favor if it can fairly discern a contrary legislative intent." (People v. Avery, supra, 27 Cal.4th at pp. 57-58.)
DISPOSITION
The court is ordered to amend the abstract of judgment to reflect the actual credit for all the time served in case A (SCN26137), including from the original sentencing date to the resentencing date. The trial court shall forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. We affirm the judgment in all other respects.
WE CONCUR: McDONALD, J., McINTYRE, J.