Opinion
H029619
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. EDDIE J. STREETER, Defendant and Appellant.
A third amended information charged appellant Eddie Streeter, Jr., with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(l), count one), domestic violence (§ 273.5, subd. (a), count two), and attempting to dissuade a witness from testifying (§ 136.1, subd. (a), count three). The information alleged that appellant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), and two prior serious felony convictions (§ 667, subd. (a)).
Unless noted, all statutory references are to the Penal Code
On January 16, 2003, a jury found appellant guilty of attempting to dissuade a witness from testifying, not guilty of aggravated assault, but guilty of the lesser included offense of simple assault, and not guilty of domestic violence. Appellant waived jury trial on the prior conviction allegations. The court found the allegations to be true. On November 21, 2003, the court sentenced appellant to 14 years in state prison consisting of the midterm of two years on count three doubled pursuant to section 667, subdivision (e)(1), and 1170.12, subdivision (c)(1), with two five-year section 667, subdivision (a) enhancements.
Although the jury verdict reflected a guilty verdict on count three of a violation of section 136.1, subdivision (a), the abstract of judgment reflects a conviction on count three for violating section 136.1, subdivision (b)(2).
Appellant filed a notice of appeal on November 26, 2003. This court affirmed the conviction in an unpublished opinion in People v. Streeter, case number H026789, but vacated a 1993 Delaware second-degree assault conviction as a second strike and a five-year section 667, subdivision (a) prior serious felony enhancement, reversed the judgment and remanded for the limited purpose of resentencing. (See People v. Streeter, H026789.)
This court took judicial notice of the record on appeal in People v. Streeter, H026789 on January 24, 2006.
On November 18, 2005, the trial court resentenced appellant. The court imposed a state prison term of nine years consisting of a two-year midterm on count three doubled to four years as a second strike (§§ 667, subds. (b)-(i), 1170.12) and a five-year enhancement for a Wisconsin prior serious felony conviction (§ 667, subd. (a)). In addition, among other things, the court imposed a restitution fund fine of $ 2200, and ordered that a protective order that was due to expire on November 21, 2013, remain in place.
Appellant filed a timely notice of appeal.
On appeal, appellant raises five issues. First, he contends that defense counsels failure to object to the imposition of the $2200 restitution fund fine prejudiced the calculations and requires this court to modify the order, reducing the fine to $1800. Second, this court should order the protective order vacated. Third, this court should order clerical errors in the minute order and abstract of judgment corrected. Fourth, the trial court abused its discretion in denying his section 1385 motion to dismiss the second strike, which violated the due process clause of the United States Constitution. (U.S. Const., 14th Amend.) Finally, the trial court erred by not calculating his custody credits, which requires a remand. For the reasons outlined below, we strike the no-contact order. We remand the matter to the trial court to correct a clerical error in the abstract of judgment and to award appellant an additional 728 days of custody credits. In all other respects, we affirm the judgment.
Facts
We take the facts of this case from the previous appeal in this case.
The evidence at trial showed that appellant had a dating relationship with Tracey Sellick. According to Sellick, appellant physically abused her on three different occasions in the two months before the incident charged as count three.
On May 3, 2002, Sellick decided that she could no longer "take [the abuse]" and called 911 for assistance in removing appellant from her home. When appellant realized what Sellick was doing, he grabbed the phone and used it to hit her over the head, causing a large laceration. By the time the police arrived, appellant had left. Sellick obtained a temporary restraining order against appellant.
Sellick saw appellant loitering around her house more than once after the May 3 incident. Each time Sellick saw appellant she called the police. Sellick received several harassing phone calls from appellant during this time. Appellant threatened to "do something" to Sellick if she talked to anyone about the May 3 incident.
On June 28, 2002, the police arrested appellant. After he was arrested, appellant called Sellick several times from jail. Appellant tried to convince Sellick to drop the charges against him, and urged her to tell the police she was not afraid of him. Appellant tried to dissuade Sellick from going to court and testifying against him, and explained how she could avoid being subpoenaed. Sellick received a call from appellants sister, who told Sellick that appellant wanted her to know that he was facing a 25-to-50-year prison sentence, and that he did not want Sellick to testify against him. Another time, appellant called Sellick on her cell phone while she was with her friend Lisa Moran. Sellick handed the phone to Moran when she realized it was appellant. After speaking with appellant, Moran told Sellick about the conversation. Appellant told Moran that the May 3 incident would be his third strike, and he begged her to "have [Sellick] not testify." Sellick felt threatened by the calls and reported them to the police.
The conversations between appellant and Sellick were recorded by the jail and the tape was played for the jury.
The conversation between appellant and Moran was recorded by the jail and the tape was played for the jury.
On July 1, 2002, while in court, appellant was served with a restraining order that prohibited him from having any contact with Sellick.
On July 17, 2002, Sellick attended appellants bail hearing. While Sellick was seated in the courtroom, appellant mouthed the word "please" to her, which Sellick understood to mean "[p]lease dont testify," and used hand motions to form the numbers two, five, and three, which Sellick understood to mean "[t]wenty-five years and three strikes." Sellick felt intimidated by appellants actions and left the courtroom. Later, Sellick called the police and told them what happened.
The Defense Case
Appellant testified in his own defense. He denied hitting Sellick at any time in March, April, or May 2002. He explained that during the day of May 3, 2002, he packed his suitcase and left it on Sellicks bed. That evening, he told Sellick he was moving out of her house. Sellick was drunk at the time. After telling Sellick he was moving out, he went to the restroom. When he emerged, he noticed that the clothes he had packed earlier were on the bed and that his suitcase was missing. Sellick was on the phone when he asked her if she had taken the clothes out of his bag.
Sellick handed the phone to appellant. Appellant gave the phone back to Sellick after realizing he did not know the person on the other end of the line. Appellant then grabbed his backpack and started walking out of the house. As he was walking out the door, Sellick threw her cell phone at him. When she demanded it back, appellant lightly tossed the phone in an underhanded motion towards Sellick. The phone did not hit Sellick in the head. However, the phone began ringing at that precise moment, causing Sellick to lift up her head and hit it on an open cabinet door.
On June 14, 2002, the police read appellant the terms of the temporary restraining order Sellick had obtained against him on May 3, 2002. He was informed that the order would expire in two days. He was told that if he wanted to contest the issuance of a permanent restraining order, he had to show up in court on the day the temporary order expired.
Appellant told police that there was no need for him to contest a permanent order because he did not plan on contacting Sellick again. After he was arrested, appellant received a copy of the permanent restraining order while in court on July 1. Appellant did not believe there was a restraining order in effect between June 16 and July 1.
Appellant admitted speaking with Sellick on the phone a few times after he was arrested. In addition, he admitted talking to Moran one time when he was trying to reach Sellick. When asked if he attempted to convince Moran to dissuade Sellick from coming to court, appellant responded, "Sort of, kind of. Yes, but no."
Appellant denied making any sort of gestures or mouthing anything to Sellick when she appeared in court at his bail hearing.
On cross-examination, appellant admitted that he did not want Sellick to attend court and testify against him, and that he asked Sellick not to go to court. In addition, he admitted explaining to Sellick that the charges against him would be dropped if she did not appear in court, and that Sellick would not get into any trouble if she were to ignore the courts subpoena. Although appellant acknowledged that the restraining order he received on July 1 prohibited him from contacting Sellick or attempting to dissuade her from testifying, he denied having read the restraining order at the time he was served with it.
Discussion
Restitution Fine
Appellant contends that the trial court miscalculated the restitution fine in this case. Appellant asks this court to modify the trial courts order and reduce the restitution fine and corresponding parole revocation fine from $2,200 to $ 1,800. Respondent agrees.
Background
The probation report prepared for appellants sentencing hearing recommended a sentence of 11 years. Pursuant to the formula set out in section 1202.4, subdivision (b), the report recommended a restitution fund fine of $2,200 and a corresponding parole revocation fine pursuant to section 1202.45.
Section 1202.4, subdivision (b)(2) provides, "In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted."
The sentencing judge rejected the recommended sentence in favor of a nine-year sentence. However, in imposing the restitution fund fine and parole revocation fines, the court imposed the amounts listed in the probation report. The court stated, "I will impose restitution of $2200 under [the] formula permitted by Penal Code section 12022.4 (b) [sic]." Defense counsel did not object.
Appellant contends that defense counsels ineffective failure to object to the sentencing courts imposition of a $2,200 restitution fine and corresponding parole revocation fine under section 1202.4s statutory formula prejudiced the calculations and requires modification.
"To prevail on an ineffective assistance of counsel claim, the defendant must show counsels performance fell below a standard of reasonable competence and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Accordingly, "[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, " but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. " [Citations.]" (Ibid.)
"When a claim of ineffective assistance of counsel is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be not satisfactory explanation. [Citations.]" (People v. Anderson, supra, 25 Cal.4th at p. 569.)
Our review is highly deferential, indulging a strong presumption that counsels acts were within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689 ; People v. Hart (1999) 20 Cal.4th 546, 624.)
The record indicates that the trial court relied on the formula provided by section 1202.4, subdivision (b) in calculating the $2,200 restitution fine. However, the trial court refused to accept the recommendation in the probation report to impose an 11-year sentence, noting that the court disagreed with the probation officers recommendation that it impose the upper term on count three.
Here, the record affords no basis for concluding that counsels failure to object was not based on an informed tactical choice. Counsels focus during the sentencing hearing was in making sure that appellant was sentenced to a determinate term. Once the court sentenced appellant to a determinate term less than that recommended in the probation report, counsel could have felt that his client had just received a huge break in terms of the length of his prison term. Under these circumstances, it would be a reasonable tactical decision to accept a restitution fine suitable for an 11-year term and refrain from arguing with the court over $400.
Accordingly, we reject appellants ineffective assistance of counsel claim.
The Protective Order
At appellants first sentencing, the court imposed a "no contact" order. The minute order from the sentencing hearing reflects the following: "DVPO . . . mod / term Exp 11-21-13."
At appellants resentencing hearing, the court clerk observed that the protective order was due to expire on November 21, 2013. The clerk asked if the court wanted it to remain or modify it. The court stated that the order was to "remain in effect as it is." The minute order from the resentencing hearing reflects that the "DVPO (remains in effect)-no contact."
Subsequently, the trial court amended the minute order from the resentencing hearing four times, but did not change the no contact order.
We note that the trial court cited no authority, reasoning or good cause for the no-contact order. Authorization for a no-contact order as a condition of probation (§ 1203.1, subds. (i)(2), (j)) is inapplicable here since appellant was not granted probation and was not convicted of a sex offense. Furthermore, although Code of Civil Procedure section 527.6 sets forth the procedures for a temporary restraining order and injunctive relief, no such procedures were followed here.
Relevant here, section 1203.1 provides, "Upon conviction of any sex offense subjecting the defendant to the registration requirements of Section 290, the court may order as a condition of probation, at the request of the victim or in the courts discretion, that the defendant stay away from the victim and the victims residence or place of employment, and that the defendant have no contact with the victim in person, by telephone or electronic means, or by mail."
Both appellant and respondent assume that the order was issued pursuant to section 136.2, subdivision (a)(4). Section 136.2 provides, "upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue orders including, but not limited to, the following: . . . [¶] (4) An order that any person described in this section shall have no communication whatsoever with any specified witness or any victim, except through an attorney under reasonable restrictions that the court may impose."
Under section 136.2, a trial court with jurisdiction over a criminal matter may order a defendant to have no contact with the victim. In People v. Stone (2004) 123 Cal.App.4th 153 (Stone), the trial court issued a protective order during the trial barring the defendant from contacting his victims. The protective order was set to expire well beyond the date of trial. (Id. at p. 158.) Subsequently, a jury found the defendant guilty and the court sentenced him to state prison. (Id. at pp. 155-156.)
On appeal, the defendant argued that the protective order was an unauthorized sentence. (Stone, supra, 123 Cal.App.4th at p. 158.) Division Two of the Second District Court of Appeal agreed, noting, "[a]lthough section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed." (Id. at p. 159.)
Accordingly, the court held that protective orders issued pursuant to section 136.2 are limited to the duration of "the criminal proceeding in which the restraining order is issued." (Stone, supra, 123 Cal.App.4th at p. 159.) In support of this conclusion, the court determined that the "only purpose of [section 136.2] is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued." (Ibid.) Furthermore, the court reasoned, "the absence of any express time limitation on the duration of a restraining order issued under section 136.2 suggests that its duration is limited by the purposes it seeks to accomplish in the criminal proceeding." (Ibid.)
We agree with Stone that the protective order is operative only during the pendency of the criminal proceeding and as a prejudgment order. Since the court sentenced appellant to state prison rather than granting probation, the trial court did not have the authority to impose the protective order beyond the pendency of the proceedings in this case. Therefore, we are compelled to reverse the no-contact order in the judgment. However, we point out that Sellick obtained a permanent restraining order against appellant. This decision does not affect that order.
Section 136.2 does authorize a restraining order issued pursuant to Family Code section 6320, which provides various procedural guidelines for its issuance. The court did not follow these procedural guidelines. Furthermore, assuming for the sake of argument that the order was issued pursuant to Family Code section 6320, we find a problem. The maximum duration for an order issued after notice and a hearing is five years. (Fam. Code, § 6345.)
Clerical Errors in the Abstract of Judgment
Appellant contends that we should correct three clerical errors in the abstract of judgment. Respondent agrees.
Generally, discrepancies between the judgment as orally pronounced and as entered are presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
"It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases." (In re Candelario (1970) 3 Cal.3d 702, 705.) "The court may correct such errors on its own motion or upon application of the parties." (Ibid.)
"Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
This nunc pro tunc authority is limited to true clerical errors. "An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion." (In re Candelario, supra, 3 Cal.3d at p. 705.) "The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. " (Ibid.)
Here, it appears there were three clerical errors in the abstract of judgment. However, as noted, the trial court amended the minute order from the November 18, 2005 resentencing hearing. At the same time, the court amended the abstract of judgment. Now, both the minute order and the abstract of judgment correctly reflect a violation of section 136, subdivision (a).
The minute order and abstract of judgment reflect that the Delaware conviction was "Stricken purs. PC 1385." The amended minute order reflects the same, but the abstract of judgment reflects that the court stayed punishment for the conviction. To be accurate, this court reversed the trial courts findings on the Delaware conviction for insufficient evidence. The punishment was not stayed or stricken as is reflected in the amended abstract of judgment. Accordingly, we order the trial court to amend the minute order and abstract of judgment to reflect the disposition of this prior conviction, by noting that the trial courts findings regarding the Delaware conviction were vacated pursuant to this courts opinion in case number H026789.
We find the abstract of judgment to be very confusing. We remind the trial court that the stricken enhancement should not be listed in section 3 of the abstract of judgment.
Finally, the minute order and abstract of judgment list restitution, "including but not limited to $6,700 to Tracey Sellick." At the original sentencing hearing, the court noted that the victim had submitted a claim for $6,700 in victim restitution. The matter was set for hearing on the claim, but the victim did not show up for the hearing. At the resentencing hearing, initially the court ordered victim restitution of $6,700. Subsequently, the court retracted that order after an off-the-record discussion. Specifically, after noting that the victim had not shown up for the scheduled restitution hearing and the matter was taken off calendar, the trial court ruled, "No order was made on that, so I presume that that does not need to be reset. No claim has been made apparently." With respect to Sellick, the amended minute order and abstract of judgment reflect "NO RESTITUTION ORDERED AT THIS TIME."
Section 1385Appellant contends that the trial courts denial of his section 1385 motion "to dismiss the second strike in the interest of justice was a prejudicial abuse of discretion that further violated the Fourteenth Amendment due process clause."
Initially, respondent contends that appellant has forfeited his due process claim by failing to raise the issue below. We point out that, generally, an appellate court is not prohibited from reaching a question that has not been preserved for review by a party. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) We are barred when the issue involves the admission or exclusion of evidence (Evid. Code, §§ 353, 354), but that is not the case here. Accordingly, we choose to exercise our discretion and address appellants due process claim. (See People v. Williams, supra, 17 Cal.4th at p. 162, fn. 6.)
Background
When appellant was charged, the district attorney alleged two prior strike convictions in the information. After appellant waived jury trial on the prior convictions, the court found the allegations to be true. Subsequently, on appeal this court found insufficient evidence to support the trial courts true finding on the Delaware conviction. Thus, after this court reversed and remanded the case to the trial court, only one prior serious felony conviction remained at the time of resentencing.
At the beginning of the resentencing hearing, the trial court indicated that it had read various documents submitted to the court by appellant as well as the probation report filed on March 14, 2003 and the supplemental probation report filed on November 18, 2005. The court allowed appellant to make a statement to the court in which he told the court that he finally realized what he had done. Appellant requested the court show him some leniency.
Defense counsel requested that the court exercise its discretion under section 1385, "People v. Romero and People v. Williams" to strike "the remaining strike in the interest of justice" and sentence appellant to a "local disposition" or a "determin[ate] term in the state prison." In so arguing, defense counsel focused on the circumstances of appellants current felony offense, namely the section 136.1, subdivision (a)(1) conviction, and appellants prospects for the future. Defense counsel argued that appellant did not come within the spirit of the Three Strikes Law.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, People v. Williams, supra, 17 Cal.4th 148.
Appellants submissions to the court contained various supporting documents, including course work assignments from his paralegal and biblical studies, a letter from appellants Texas counsel confirming that a Texas charge had been dismissed, institutional records concerning appellants medical disabilities and ongoing treatments, selected documents from the initial sentencing hearing, including Judge Hubers statement of reasons for dismissing a Wisconsin prior conviction as a third strike, and a declaration from a juror indicating that the jury had expressed doubts and uncertainty as to whether "anything really happened warranting conviction of the charges." The juror noted that her fellow jurors did not believe that appellants telephone calls to Sellick amounted to a serious threat. Had they had the opportunity to find him guilty of a misdemeanor, they "likely would have done so." Finally, as to the sentence, the juror felt that one year in county jail was enough, "given the overall facts of this case."
In addition, appellants numerous letters of support indicated that appellant was a personable, intelligent, articulate individual from a loving and respectable family willing to support appellant.
After hearing argument from the prosecutor who asked for the upper term as recommended by probation, the court noted that it had "previously struck the Wisconsin strike and to the extent that [the court was] required to do that again here . . . [the court] would do so again. So that strike will not, that particular strike will not be considered. It was not considered by the probation officer when he made the report." However, the court went on to say that it was not going to strike "any other felonies that do exist that are strike priors."
The court went on to sentence appellant to the mid-term of four years with a "five-year enhancement pursuant to 667(a) of the Penal Code" for a "total of nine years. . . ." Thereafter, the prosecutor asked the court to clarify its ruling and the following exchange took place.
"[Prosecutor]: Just to clarify your ruling, during your initial comments, your Honor, you mentioned the Milwaukee, Wisconsin, robbery prior and mentioned you werent going to touch that, that it had previously been stricken.
"The Court: I had previously stricken.
"[Prosecutor]: At this time, youre not striking it; youre leaving it as is because that is the strike in question in this case? Thats the only remaining strike.
"The Court: I thought that was the one initially."
The prosecutor asked to go off the record and the court held a bench conference. Back on the record, the court started to explain the substance of the bench conference dealt with the "issues of the strikes, but also with regard to restitution." The court went on to note that the "issue with regard to the strikes really spoke to what it was that the appellate court did. Counsel appear to be in agreement that what the appellate court did was deal with the issue of time sentencing and nothing else, correct?"
The prosecutor explained, "Well, I think we agreed that the appellate court decided that the Delaware prior was invalid both under the Strike Law, 667/1170.12 and as a Prop. 8 prior. This court does not consider that any further. My further understanding is this court has chosen to allow the Milwalkee [sic] County Robbery Prior F901719 to remain as a strike both under 667/1170.12 and 667(a) and that the court has denied [appellants] request to strike that prior under both those codes, and that is the way that the court has arrived at the nine years."
The court confirmed that the prosecutors statement was correct and defense counsel concurred.
In Romero, supra, 13 Cal.4th 497, our Supreme Court held that a " trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385(a). (People v. Williams[, supra, 17 Cal.4th at p. 158] (Williams).)" (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) Further, the Supreme Court has held that " [a] courts discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is reviewable for abuse of discretion. [Citation.]" (Ibid.)
In Carmony, the Supreme Court held that a trial courts "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citations.] Second, a "decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. " [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
"`[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. [Citation.] [¶] Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss [citation], or where the court considered impermissible factors [such as the defendants race or national origin] in declining to dismiss [citation]." (Carmony, supra, 33 Cal.4th at pp. 377-378.)
Appellant submits that an abuse of discretion occurred because there was a patently arbitrary, capricious, and absurd result under the facts of this particular case. Specifically, appellant argues that the current felony was a relatively minor offense, and there was not dissuasion only an attempt. The offense is a "wobbler" punishable as a felony or a misdemeanor and several jurors who decided the case indicated that this minor conduct should not even be punished as a felony. Moreover, his offense was committed in ignorance under the mistaken belief that his conduct was lawful. The prior Wisconsin felony was committed in 1990 and involved only a threat of violence, no actual violence or weapons use. Further, the offense occurred before California enacted its Three Strikes Law so that he had no reason to know that it was a strike.
Furthermore, the decreasing severity of his record, his willingness to participate in rehabilitative and educational programs, and a loving family relationship and a caring support structure weighed in his favor.
As respondent points out, at appellants initial sentencing hearing the trial court did take into consideration each of these factors and concluded that such factors partially removed appellant from the Three Strikes Law. Nevertheless, the trial court found aspects of appellants case and background troubling and declined to exempt him completely from the Three Strikes Law. On resentencing, the trial court agreed with its original assessment and again declined to remove appellant entirely from the scheme citing the circumstances of the case and appellants criminal history, which the court characterized as "by no means . . . great."
While appellant characterizes his current felony offense as "relatively minor," because "there was no actual dissuasion, merely an attempt," appellant ignores the fact that a violation of section 136.1 is a serious felony within the meaning of section 1192.7, subdivision (c).
Appellants attempt to minimize his prior criminal record is unavailing. Between 1990 and 2001, appellant sustained nine felony and 10 misdemeanor convictions, two of which were convictions for domestic violence against his wife. It is true he sustained his prior conviction in 1990, however, consistently since then, he has engaged in a pattern of criminal behavior, including behavior that resulted in assaults against women. Moreover, most of appellants offenses were committed while he was on probation or shortly after his release from prison.
It is not clear from the record whether he was still married at the time of the incident.
It is apparent from the record that the trial court carefully and thoughtfully balanced appellants future prospects and attempts to improve himself in prison against his current offenses and past criminal history. Accordingly, "[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Since appellant has failed to show the trial courts decision in this case was arbitrary or irrational, his claim fails. For the same reasons appellants due process claim fails. The trial court considered all permissible facts and reached a rational individualized decision. Accordingly, there can be no due process violation. (See generally Walker v. Deeds (9th Cir. 1995) 50 F.3d 670, 673.)
Custody Credits
After the trial judge imposed a nine-year sentence, the court stated that appellant would "receive whatever credits he is entitled to." Later, defense counsel expressed concern about the credits since appellant had been in custody for approximately two years. The court told counsel that it did not have the credits and that they would be "determined by the state people at the state side and the others . . . had already [been] established. . . ."
Defense counsel explained that appellant was concerned that he should have been given half time rather than 80 percent. Defense counsel told the court that he had explained to appellant that under People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), the Department of Corrections would determine the actual credits to which he was entitled. The probation officer had filed a memorandum updating appellants credits. The updated memorandum showed 696 additional days of actual time served from the date of the original sentencing hearing (November 21, 2003) until the date the memorandum was filed (October 17, 2005). The memorandum noted that the Department of Corrections would calculate any work time credits appellant earned during that time in accordance with Buckhalter. Later, the probation report listed the final count of appellants custody credits as 728 actual days from the date of the original sentencing hearing, until the date of the resentencing hearing. Again, the probation officer noted that the Department of Corrections would calculate any conduct credits earned during that time.
The minute order and abstract of judgment list 512 days of actual credit and 256 days of Penal Code section 4019 credits as of November 21, 2003. The amended minute order and abstract of judgment reflect the same.
Appellant contends that the trial court should have determined all actual days he was in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment. Respondent concedes the issue. We agree.
"[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (Buckhalter, supra, 26 Cal.4th at p. 29.)
Having modified appellants sentence on remand, the trial court "was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time." (Buckhalter, supra, 26 Cal.4th at p. 37.)
Respondent asserts that because the probation officer has calculated the number of days appellant spent in custody from the time of his original sentencing hearing until resentencing, this court should order the abstract of judgment modified to reflect a credit of 1,496 actual days. We will so order.
The Department of Corrections will calculate post sentence conduct credits. (In re Martinez (2003) 30 Cal.4th 29, 37.)
Disposition
The no-contact order is stricken. The trial court is ordered to award appellant an additional 728 days of custody credits beyond the 768 days of presentence custody credit specified in the abstract of judgment. The trial court is ordered to amend the abstract of judgment to accurately reflect the disposition of the Delaware conviction. As so modified, the judgment is affirmed. The trial court is ordered to send a copy of the amended abstract of judgment to the Department of Corrections.
We Concur:
RUSHING, P. J.
PREMO, J.