Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA030076, Kathryne Ann Stoltz, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Jose L. Schindelmeiser, appeals after he admitted a probation violation and was sentenced to state prison. We strike the Penal Code section 12022.7 great bodily injury enhancement. We reverse the presentence custody credit award and remand for further proceedings.
All further statutory references are to the Penal Code except where otherwise noted.
II. BACKGROUND
A. The 1998 Offense
On March 24, 1998, defendant assaulted two victims. A felony complaint was filed and an arrest warrant issued on April 29, 1998. Defendant was arrested on July 24, 1998. On September 1, 1998, he was charged in a two-count information with corporal injury to a cohabitant (§ 273.5, subd. (a)) (count 1) and assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 2). It was further alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). On November 9, 1998, defendant pleaded no contest to count 2, assault with a deadly weapon, and admitted he personally inflicted great bodily injury upon the victim. Imposition of sentence was suspended and he was placed on three years’ formal felony probation on the condition, among others, that he serve 134 days in the county jail and undergo domestic violence counseling. He received credit for 117 days of presentence custody and 17 days conduct credit for a total presentence custody credit of 134 days. He was ordered to pay a $200 restitution fine.
With respect to presentence custody credit, the following transpired: “The Court: How many actual days’ credit does he have? [¶]... [¶] [Deputy Public Defender Carl Russ]: 117 days, Your Honor, actual. That is including the time that he was held in custody on the warrant in Oregon, but he did waive extradition. [¶]... [¶] [Mr. Russ, explaining defendant’s plea]: The judge has indicated she would give you time served, credit for the time since you have been arrested and brought back from the State of Oregon I believe is where you were first arrested. [¶]... [¶] The Court: All right. I just wanted to indicate that because this is a violent felony, defendant’s credits are limited to 15 percent. [¶] You indicated 117 actual days? [¶] Mr. Russ: Yes, Your Honor. [¶] The Court: That would be, then, 17 days’ good behavior, for a total of 134 days’ credit.” We have no record before us of any time spent in custody in Oregon.
B. The Probation Violation Hearing
A probation violation hearing was held on March 22, 2000. Defendant’s probation was modified to include additional domestic violence counseling. The trial court found defendant owed a remaining balance of $1,580 to the probation department. The trial court stated defendant’s probation would be terminated and he would be allowed to move to Nevada upon completion of counseling and full payment of the funds due.
On August 15, 2000, the probation department reported defendant was in violation of his probation. Defendant had failed to: report to the probation department; complete domestic violence counseling; and pay money owed to the probation department. Defendant failed to appear at the August 15, 2000 hearing. Probation was revoked and a no bail bench warrant was issued.
Nine years later, on March 29, 2009, defendant was “arrested” on the bench warrant. Defendant’s probable cause certificate issuance request begins, “I was arrested on 3-29-09 for an outstanding warrant that I was unaware of.” At an April 14, 2009 hearing, the trial court and the deputy district attorney asserted there were additional probation violations: “The Court:... [¶] Sir, you’re alleged to be in violation of probation on the grounds of desertion, of not reporting to the probation officer, and also not completing your domestic violence counseling. [¶] Am I correct about that? Is that the allegation? [¶] [Deputy District Attorney Susan] Tannenbaum: I think he also has been arrested on three subsequent cases -- [¶] The Court: Yes. [¶] Ms. Tannenbaum: -- and convicted. [¶] The Court: Thank you. [¶] Ms. Tannenbaum: One of which was a felony, I think, and two of them were misdemeanors. [¶] He also left the state without permission. [¶] The Court: Well, I think that’s encompassed in the desertion.”
Defendant admitted he was in violation of his probation. He received the high term of four years in state prison. The trial court chose the high term because defendant inflicted great bodily injury on a victim. The trial court then imposed and stayed the three-year great bodily injury enhancement. (§ 12022.7, subd. (a)) The trial court explained to defendant: “The three-year great bodily injury allegation is imposed and stayed pursuant to Penal Code section 1385. ‘Stayed’ just means it just... never gets actually executed. It’s there on your record, but it’s not – you don’t have to serve it. That’s what ‘stayed’ means.” Defendant received credit for 193 days actual custody plus 28 days of conduct credit for a total presentence custody credit of 221 days. He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)), and a $30 criminal assessment fee (Gov. Code, § 70373, subd. (a)(1)). The trial court denied defendant’s probable cause certificate issuance request asserting ineffective assistance of counsel. The notice of appeal expressly states defendant is appealing from matters occurring after the entry of his nolo contendere plea.
III. DISCUSSION
A. Opening Brief
We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On October 5, 2009, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. No response has been received. No reasonably arguable issue relevant to defendant’s plea or the post-plea ineffective assistance of counsel claim identified on the notice of appeal exists.
B. Presentence Custody Credit
We asked the parties to brief the question of whether defendant received excessive presentence custody credit. The failure to award a proper amount of credit is a jurisdictional error that may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.) Defendant was first arrested on July 24, 1998, and was sentenced on November 9, 1998; he served 109 days in presentence custody. As noted above, we have no record before us of any time defendant spent in custody in Oregon. Defendant’s probable cause issuance request states he was arrested on the bench warrant on March 29, 2009. If such is the case, as he was sentenced on April 14, 2009, he only served 17 days in presentence custody on this occasion. After oral argument, we allowed appointed appellate counsel the opportunity to present judicially noticeable records to justify credit for time served in Oregon. No such records have been presented. We would be warranted in simply reversing the order granting credit for time served. On the other hand, in the trial court, both counsel acknowledged defendant was arrested in Oregon and held pending extradition. And the trial court was satisfied defendant had in fact been incarcerated in Oregon. California Rules of Court, rule 4.472 contains explicit requirements for calculating presentence credits; procedures which were not followed here. Given these circumstances, the fairest course of action is to reverse the presentence credit award and, upon remittitur issuance, allow the parties to present evidence (including a stipulation) as to the duration of the Oregon incarceration. (§ 1260; see People v. Rodriguez (1998) 17 Cal.4th 253, 258.)
California Rules of Court, rule 4.472 states: “At the time of sentencing, the court must cause to be recorded on the judgment or commitment the total time in custody to be credited on the sentence under sections 2900.5, 2933.1(c), and 2933.2(c). On referral of the defendant to the probation officer for an investigation and report under section 1203(b) or 1203(g), or on setting a date for sentencing in the absence of a referral, the court must direct the sheriff, probation officer, or other appropriate person to report to the court and notify the defendant or defense counsel and prosecuting attorney within a reasonable time before the date set for sentencing as to the number of days that defendant has been in custody and for which he or she may be entitled to credit. Any challenges to the report must be heard at the time of sentencing.”
C. The Great Bodily Injury Enhancement
We also asked the parties to brief the question of whether the trial court, having relied on great bodily injury infliction to impose the upper term, was required to strike, rather than impose and stay, the section 12022.7 enhancement. It was error to both aggravate defendant’s sentence for great bodily injury infliction and impose the section 12022.7, subdivision (a) enhancement. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c); People v. Coleman (1989) 48 Cal.3d 112, 164-165; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735; People v. Dozier (1979) 90 Cal.App.3d 174, 178; see People v. Scott (1994) 9 Cal.4th 331, 350; People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615.) Having relied on great bodily injury infliction to aggravate the sentence, the trial court was required to strike and not impose sentence (stayed or otherwise) on the great bodily injury enhancement. (People v. Whitehouse (1980) 112 Cal.App.3d 479, 483; § 1170, subd. (b) [“the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law”]; Cal. Rules of Court, rule 4.420(c) [“a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so” (italics added)].) The terms stay and strike are not legally synonymous. (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589; People v. Santana (1986) 182 Cal.App.3d 185, 190-191.) The Court of Appeal has explained: “A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency. [¶] In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to a dismissal.” (People v. Santana, supra, 182 Cal.App.3d at pp. 190-191.) We conclude, however, it is not reasonably probable that on remand the trial court would impose a different, more favorable sentence. (See People v. Osband (1996) 13 Cal.4th 622, 728; People v. Coleman, supra, 48 Cal.3d at p. 166; People v. Coelho (2001) 89 Cal.App.4th 861, 889; People v. Williams (1996) 46 Cal.App.4th 1767, 1783; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1686.) The trial court stated its reason for not imposing the enhancement-because it relied on the great bodily injury infliction to impose the upper term. Further, the trial court clearly intended defendant would not serve time for the enhancement. Therefore, we will strike the enhancement. The abstract of judgment need not be amended as the enhancement was never included therein.
IV. DISPOSITION
The Penal Code section 12022.7 great bodily injury enhancement is stricken. Defendant’s presentence custody credit award is reversed and this matter is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.