Opinion
F039135.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. FRANK TRAVALINI, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janis Shank McLean and Alan Ashby, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Frank Travalini entered pleas of not guilty and not guilty by reason of insanity to numerous counts. He was found guilty and he was found sane. In his original appeal before this court (People v. Travalini, F027480, filed Nov. 4, 1999), we found error in the sanity phase of his trial and remanded the matter to the trial court for a new sanity trial; we also ordered several other changes to the judgment. On remand, a jury found defendant insane on counts I and II and sane on counts III, V, and VIII. Defendant appeals, claiming the trial court abused its discretion in denying his motion to dismiss his strikes, his sentence is cruel and/or unusual punishment, the trial court improperly imposed restitution orders on the counts on which defendant was found insane, and he is entitled to presentence conduct credits up until the date of his new sentencing hearing.
FACTS[]
We adopt the facts as set forth in our original opinion, noting that we reversed count IV in the original appeal and it is no longer relevant to these proceedings.
On July 3, 1995, Zainab Mohammed returned home at approximately 11:00 p.m. to find the apartment she shared with her husband, Abdulhameed Kamaluddin, in disarray. A gold watch, other jewelry, $ 3,000, and a set of car keys were missing from the apartment. Clothes and toiletries were strewn on top of the bed; included in these items was a wallet with defendants identification. (Count I, burglary.)
Christina Dempsey was working at the Texaco Star Mart on July 3, 1995. At approximately 10:30 p.m. defendant came in the store. He got a drink and brought it to the counter. He asked Dempsey if she would hold on to his gold watch until he got some money. Dempsey said no. Defendant returned later that evening, picked up several items, and placed the items on the counter. Defendant started to take off his watch. Dempsey told defendant she could not accept the watch as payment for the goods. Defendant picked up the items and left. (Count II, theft with a prior theft-related conviction.)
Defendant was arrested shortly thereafter. He had Kamaluddins watch on when he was arrested. He said he did not enter Kamaluddins residence. He also told the officers he hid car keys (belonging to Kamaluddin) in the patrol car.
On August 28, 1995, Sheriffs Deputy Lemos was taking defendant and other inmates to the transportation van after defendants preliminary hearing on the above charges. While Lemos was putting defendant in the van, defendant shifted and his belly chains dropped to the ground. Defendant ran and started to climb the fence. Lemos gave chase and attempted to pull defendant off the fence. Defendant threatened to hit Lemos in the head with his handcuffs. Defendant scaled the fence, took off his jail clothes, and ran. (Count III, escape by force.) Lemos found a metal shank at the crime scene. (Count IV, possession of a sharp instrument by a prisoner [this count was reversed in defendants original appeal].)
Defendant entered the home of Evelyn Pereira and told her he needed a ride to Hanford. Pereira grabbed her car keys and walked out to the garage. (Count VII, burglary; defendant was acquitted of this charge.) Pereira told her husband that defendant needed a ride. Jerry Pereira unlocked the doors to the van. Defendant got in the passenger door. Defendant said, "Lets go." Jerry noticed that defendant had his hands in his lap and asked what defendant was carrying. Defendant said he had a knife. Jerry backtracked and defendant demanded Jerrys keys. Jerry gave defendant the keys and defendant left with the Pereira van. (Count V, carjacking and count VI, robbery; defendant was acquitted of the alternate charge of robbery.)
An officer recognized defendant as he drove the van. After realizing the officer recognized him, defendant led officers on a high-speed chase exceeding 100 miles per hour. Defendant eventually bailed out of the car and ran. He was apprehended. (Count VIII, evading a police officer.)
Defendant does not challenge any portion of the sanity phase; we need not set forth those facts in detail. We note, for purposes of discussion of the sentencing issues, that defendants family members testified that he was developmentally slow and had other disabilities. He could not function on his own. He used drugs heavily and experienced mental problems as a result. Some experts believed that defendant was a malingerer.
DISCUSSION
I. Exercise of Discretion to Not Dismiss Strikes
It was found true that defendant had suffered two prior felony convictions within the meaning of the three strikes law. (Pen. Code, § 667.) The trial court imposed a sentence of 25 years to life for counts III, V, and VIII, for a total term of 75 years to life.
At sentencing, defendant asked the trial court to exercise its discretion and strike one or both of his prior serious felony convictions. He claimed that his prior strikes, two first degree burglary convictions, were not violent felonies, but serious felonies in which no threat of violence was used. He argued that these convictions were remote in time, both more than a decade old. As his final assertion in support of his argument, he pointed to his "extreme obvious mental illness."
The trial court found that the findings required to strike a prior conviction could not be made in this case. In response to the argument that defendant had extreme mental illness, the court stated that although defendant was found insane on counts I and II, the jury found he was sane as to counts III, V, and VIII and that the sane portion of the verdict deserves as much credit and respect as do the verdicts on counts I and II.
Defendant contends the trial court abused its discretion when it refused to strike one or more of his strikes as to one or more of his convictions. He reviews his mental history and claims this is a significant factor, recognized by the jury, which acts in his favor when considering whether to strike the findings of prior serious felony convictions. Additionally he argues that his drug addiction, the nonviolent nature of his present or past crimes, and the nature of counts III and VIII (which could be punished as misdemeanors), demonstrate that the trial court should have granted his motion to dismiss his strikes and should not have imposed the punishment of 25 years to life on all three counts.
"`Trial courts retain the power to dismiss prior strikes in the interest of justice under section 1385. [Citation.] In exercising their discretion under section 1385, trial courts must consider both the defendants constitutional rights and societys interests, as represented by the People. [Citation.] [Citation.] This requires the court to 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.]
"A trial courts decision to strike prior felony convictions is subject to review under the `deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where 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.] [Citation.]" (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.)
Defendant places great emphasis on his mental condition. The trial court recognized this argument and rejected it. While defendant was found to be insane on two counts, he was found sane on three others. Thus it is clear that a jury, aware of defendants mental history, found that he was responsible for the crimes in question and was capable of acting in a sane fashion. We cannot say that the trial courts decision regarding this factor was irrational or arbitrary.
Although defendants prior crimes and present crimes did not involve the actual infliction of violence, each of the crimes committed by defendant has a strong potential to cause physical harm. His prior burglaries and present escape conviction involve either deceit or stealth, creating an obvious potential for violence and involve inherent dangers to personal safety. (People v. Waldecker (1987) 195 Cal.App.3d 1152, 1157-1158.) The carjacking and high-speed chase exposed the victims to the potential for violent injury. Again the trial courts decision to reject defendants argument minimizing his criminal behavior was not arbitrary or irrational.
The trial court did not abuse its discretion when it refused to strike any of defendants strikes.
II. Cruel and/or Unusual Punishment
In defendants previous appeal before this court, defendant claimed that his sentence of five consecutive terms of 25 years to life was cruel and unusual punishment. We rejected his argument. Defendant again raises the argument of cruel and/or unusual punishment based on his three consecutive sentences of 25 years to life (two of the original terms no longer apply because he was found not guilty by reason of insanity).
We reject defendants argument for several reasons. First defendant did not argue at his new sentencing hearing that his sentence constituted cruel and/or unusual punishment. A defendant waives an argument of cruel and unusual punishment on appeal when he fails to make the argument below. (People v. Burgener (2003) 29 Cal.4th 833, 886.)
With the exception of the finding by the jury that defendant was insane when he committed counts I and II, nothing has changed from the time we issued our earlier opinion and analyzed this issue. The insanity finding on two counts does not undermine our previous analysis, which recognized that defendant suffered from some mental impairment. We stated:
"Defendant committed the current offenses when he was 35 years old. His first offense, a burglary conviction, occurred in 1978 when he was 18 years old. In 1981, he was again convicted of burglary. While on probation in 1983, he was sent to prison after committing a residential first degree burglary. In less than a year following his parole, he committed another residential first degree burglary. He was paroled and then violated parole. In 1992, again less than a year after he was paroled, he was arrested for transportation of methamphetamine, he was convicted and sent to prison in 1992. Following his release he committed the current offenses.
"Defendant has demonstrated a clear propensity to victimize society and has done so almost his entire life. While defendant had an admitted drug problem, defendant shows little or no motivation to change his lifestyle and it appears the substance abuse is a substantial factor in committing the crimes. In such a situation, a defendants drug abuse is not a mitigating factor. (People v. Reyes (1987) 195 Cal.App.3d 957, 963.)
"Although defendant may suffer some mental impairment, his escape attempt demonstrates that he is capable of planning and carrying out sophisticated behavior. Defendants individual characteristics demonstrate a clear threat to public safety." (People v. Travalini supra, slip opn. at p. 20.)
Finally, in Lockyer v. Andrade (2003) 538 U.S. ___, and Ewing v. California (2003) 538 U.S. ___, the United States Supreme Court rejected the claim that life sentences imposed under Californias three strikes law constitute cruel and unusual punishment for even relatively minor offenses.
III. Restitution
The trial court ordered direct restitution pursuant to Penal Code section 1202.4, subdivision (f) to the victim in count I (Kamaluddin) in the amount of $3,600 and in count II (Texaco Star Mart) in the amount of $15. Defendant was found insane on these two counts.
Defendant contends, and respondent concedes, the trial court was not authorized to impose restitution in the criminal proceedings on those counts where defendant was found not guilty by reason of insanity. We agree.
Penal Code section 1202.4, subdivision (a)(1) provides: "It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (Italics added.)
The California Constitution provides that "all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." (Cal. Const., art. I, § 28, subd. (b); italics added.)
A finding of insanity demonstrates that, assuming a defendant committed the acts amounting to the offenses charged, he or she is not amenable to punishment under the law. (People v. Hernandez (2000) 22 Cal.4th 512, 522.) The Legislature has recognized that a person who is found to be insane is not convicted of the crime. For example, Welfare and Institutions Code section 6600 lists offenses that fall within the Sexually Violent Predator Act to include specified crimes that "result in a conviction or a finding of not guilty by reason of insanity... ."
The trial court erred in ordering restitution based on counts I and II.
IV. Conduct Credits
In his original appeal, defendant claimed that his conduct credits were erroneously calculated. We agreed: "At sentencing, the trial court found that defendant was entitled to 501 days of actual credit and was awarded 69 days of good- and work-time credit, for a total of 570 days of credit. It appears defendants conduct credits were determined pursuant to section 2933.1, subdivision (c). Section 2933.1 limits presentence conduct credits to 15 percent if defendant is convicted of a violent felony. Because defendant was not convicted of a violent felony, his conduct credits should have been determined pursuant to section 4019." (People v. Travalini, supra, slip opn. at p. 22.)[] In addition, we reversed the sanity verdict. Our disposition stated in part: "The sanity verdict is reversed and defendant is entitled to a new sanity trial. If defendant is found sane, the court should recalculate defendants conduct credits pursuant to section 4019."
Penal Code section 4019 allows a prisoner "to earn an additional two days credit for every four days in custody" after arrest and before sentencing if he performs assigned work and complies with all requirements. (People v. Henson (1997) 57 Cal.App.4th 1380, 1384.) But, if the defendant is convicted of any "violent" felony listed in Penal Code section 667.5, Penal Code section 2933.1 limits the defendants maximum allowable presentence credits to 15 percent, rather than 50 percent.
On remand, after the sanity trial, the trial court found that as to the date of defendants original sentencing hearing defendant was entitled to 501 days of time-served credits and 230 days of good behavior and work time credits pursuant to Penal Code section 4019. The trial court left the remaining calculation of credits to the Department of Corrections. It did not calculate any actual and/or other credits from the date of defendants original sentencing hearing to his new sentencing hearing.
Defendant claims that the trial court erred in two respects. First he argues the trial court erred in not calculating his actual credits until the date of resentencing. Second, he argues that he is entitled to full presentence custody and conduct credits up until the date of resentencing.
Defendant is correct in his first argument. The trial court is obliged on remand to credit a defendant with all actual days he has spent in custody, whether in jail or in prison. (People v. Buckhalter (2001) 26 Cal.4th 20, 37.) "[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." (Id. at p. 29.) The trial court here failed to do this.
However, defendants second argument fails. In Buckhalter, the court held that when a defendant is remanded solely for resentencing he is not entitled to any presentence conduct credits after the original sentencing hearing. "[O]nce a convicted felon has been so sentenced, committed, and delivered, he remains, pending a remand solely on sentencing issues, a prisoner in the custody of the Director [of Corrections] under the original commitment, even during periods when he is temporarily housed away from state prison to permit his participation in the remand proceedings. Hence, the inmates accrual of term-shortening sentence credits can arise only under laws and rules specifically applicable to prisoners in the Directors custody." (People v. Buckhalter, supra, 26 Cal.4th at pp. 29-30.)
Recently, in In re Martinez (2003) 30 Cal.4th 29, the Supreme Court held that when a defendants conviction is reversed on appeal and he or she is subsequently found guilty (or pleads guilty), the defendant is entitled to presentence custody credits for the period of time between reversal on appeal and resentencing;[] however, the prereversal prison time already served is not changed to presentence status, retaining its prison time character upon the valid conviction, limiting conduct credits on this portion to the 20 percent maximum. (Id. at p. 37.)
The parties did not dispute this initial point and the Supreme Court did not address it further. (In re Martinez, supra, 30 Cal.4th at p. 32.)
In Martinez the court distinguished a pretrial detainee from a state prison inmate for purposes of conduct credits. "A pretrial detainee is not similarly situated to a state prison inmate. (Buckhalter, supra, 26 Cal.4th at p. 36; ... .) `Pretrial detainee-felons are presumptively innocent and therefore not in need of rehabilitation; prison inmates are conclusively guilty and presumptively in need of rehabilitation. In many cases, the pretrial detainee may make bail at any time, thereby interfering with any continual work or education program.... Pretrial detainees have court appearances; they consult with their attorneys and other experts their cases may require. This makes continual work rehabilitation or education [programming] impractical; obviously such interruptions are not a concern for prison inmates. Moreover, the Legislature has not declared its intent to achieve self-sufficiency in the county jails. While the foregoing distinctions [do not exhaust] the differences between the two classes, they are sufficient to demonstrate that the classes are not similarly situated. [Citation.] Accordingly, `the terms prison inmates and pretrial detainees are more than labels which define the difference between persons who have been convicted of a felony and sentenced and those who have simply been charged with [a] felony. [Citation.] These contrasting functions of confinement warrant the treatment of petitioners phase II [the period from the initial sentencing to the reversal] custody as postsentence.
"Furthermore, petitioners proposal to recharacterize her phase II confinement as presentence time would arguably create an equal protection problem even worse than that to which petitioner objects. Suppose a jury convicts two defendants, each of whom has a prior strike, of the same robbery. If there are no errors with As trial, his first five years of custody will yield A one year of postsentence conduct credit. (§§ 667, subd. (c)(5), 1170.12, subd. (a)(5).) By contrast, if on direct appeal or habeas corpus review a court finds the trial court improperly denied Bs motion for self-representation, petitioners theory would grant B two and one-half years of credit (§ 4019), even though the exact same evidence was presented against each codefendant." (In re Martinez, supra, 30 Cal.4th at p. 36.)
To the extent that defendant argues he is entitled to the presentence credits (rather than prison time credits) for the period from initial sentencing to our remand for a new sanity trial, his claim was rejected in Martinez. We must determine if defendant is entitled to presentence credits pursuant to Martinez for the period of time between our remand and his new sentencing, or if this too is considered as prison time causing defendant not to be entitled to any presentence credits after his initial sentence pursuant to Buckhalter.
Defendant argues that the remand for a new sanity trial invalidated the judgment of conviction and is thus distinguishable from what occurred in Buckhalter, where the matter was remanded only for resentencing. He claims that our prior judgment was equivalent to a grant of a new trial on a critical issue in his case and "without a finding of sanity, there could be no judgment of conviction."
In our previous opinion, we did not reverse defendants convictions. We reversed the sanity verdicts; such verdicts occurred after defendant was convicted. Thus, contrary to defendants assertion, we did not invalidate the judgment of conviction. While we did not remand the matter strictly for resentencing (as in Buckhalter), neither did defendant receive a reversal of his conviction (as in Martinez).
We find the decision in Buckhalter to be more analogous to what occurred here. Defendants convictions were not invalidated; they remained valid subject to further proceedings on the question of sanity. During the entire time defendant was in custody after his original sentencing and up to the time of his current sentencing, he was serving time subject to valid convictions. Two of those convictions were subsequently invalidated by reason of the jurys finding of insanity. Defendant suffered no adverse consequences regarding these two no longer valid convictions. The other three convictions remained valid throughout the proceedings. After the remand from this court, defendant did not return to the status of presumptively innocent, as is the case for pretrial-detainee felons or felons after a reversal of their convictions. Defendants convictions were not reversed; he is therefore not entitled to the additional credits allowed in Martinez; he is similarly situated to the defendant in Buckhalter, who remained convicted but whose case was remanded for further proceedings.
The trial court erred in failing to calculate actual conduct credits until the date of resentencing. However, the trial court was not required to award credits in the form of presentence conduct credits for any period of time after the original sentence.
DISPOSITION
The restitution awards to Abdulhameed Kamaluddin and to Texaco Star Mart are ordered stricken. In addition, the trial court is ordered to recalculate defendants conduct credits up until the time of sentencing. Finally, the trial court is directed to forward corrected abstracts of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, J., CORNELL, J.