Opinion
F073172
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. RYAN ALLEN VANOSTRAND, Defendant and Appellant.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
(Stanislaus Super. Ct. No. 1438510) ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered, pursuant to California Rules of Court, rule 8.264(c), that the nonpublished opinion filed herein on July 28, 2017, be modified as follows:
1. The first sentence of the first paragraph on page 2 is modified to read as follows:
Appellant Ryan Allen Vanostrand pled no contest to vehicle theft (Veh. Code, § 10851, subd. (a); count I) and evading a police officer (Veh. Code, § 2800.2, subd. (a); count III).
2. The first sentence of the second paragraph on page 2 is modified to read as follows:
On January 8, 2016, the court sentenced Vanostrand to an aggregate term of eight years four months.
This modification does not affect a change in the judgment. (Cal. Rules of Court, rule 8.264(c)(2).)
Appellant's petition for rehearing is denied.
PEÑA, J. WE CONCUR: LEVY, Acting P.J. SMITH, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1438510)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant Ryan Allen Vanostrand pled no contest to vehicle theft with a prior (Veh. Code, § 10851, subd. (a) & Pen. Code, § 666.5; count I) and evading a police officer (Veh. Code, § 2800.2, subd. (a); count III). Vanostrand also admitted two prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On January 8, 2016, the court sentenced Vanostrand to an aggregate eight-year term. The court, however, put the matter over to allow the probation department to calculate Vanostrand's presentence custody credit.
On January 22, 2016, the court awarded Vanostrand 1,197 days of presentence custody credit, 599 days of presentence actual custody credit and 598 days of presentence conduct credit.
On April 20, 2016, Vanostrand's appellate counsel filed a brief requesting that we review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On July 18, 2016, Vanostrand filed a "supplemental brief" that raises several issues that are discussed below.
On May 24, 2017, we issued a letter directing the parties to file a letter brief addressing whether for purposes of calculating presentence custody credit, Vanostrand was sentenced on January 8, 2016, or January 22, 2016, and whether the court imposed an unauthorized sentence when it awarded him presentence custody credit for his time in custody from January 9, 2016, through January 22, 2016.
On June 9, 2017, Vanostrand's appellate counsel filed a response. Following independent review of the record and having considered the issues appellant raises and appellate counsel's brief, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On November 2, 2011, Vanostrand stole a car in Stanislaus County. He then failed to stop at several red lights and stop signs as he evaded a police officer during a high-speed pursuit that ended when he wrecked the vehicle.
On November 18, 2011, the Stanislaus County District Attorney filed a first amended complaint that charged Vanostrand with receiving a stolen vehicle (§ 496d, subd. (a)) and a third prison term enhancement (§ 667.5, subd. (b)), in addition to the two substantive counts and other allegations to which he pled.
On June 10, 2013, Vanostrand entered into a plea bargain that provided that the remaining counts and allegations would be dismissed. The agreement also provided that as soon as space became available, Vanostrand would be released from custody on his own recognizance with a waiver similar to a Cruz waiver so he could voluntarily participate in an inpatient drug rehabilitation program at the Teen Challenge program (TCP). Pursuant to the agreement, upon his release from the program, Vanostrand would immediately surrender himself into custody so the court could sentence him. If Vanostrand successfully completed the rehabilitation program, the court would sentence him to a six-year term, but he would not get credit for time he spent in the program. If he did not successfully complete the program, did not surrender himself into custody when he completed the program, or failed to appear in court, he would be sentenced to an aggregate term of eight years four months. Vanostrand was released from custody on his own recognizance the following day.
People v. Cruz (1988) 44 Cal.3d 1247.
On December 15, 2014, Ron Jett from the TCP reported to the court that Vanostrand was doing well, that he had started the six-month reentry portion of the program a month earlier, and that Vanostrand was still living at the facility.
On May 28, 2015, Vanostrand appeared in court and defense counsel provided the court with a letter dated April 12, 2015, from TCP that stated, "Please allow this to serve as a letter of completion from our facility." The letter also stated that Vanostrand had been released from the program on that date. The court continued the matter to allow the prosecutor to contact TCP to get more information from the program, including whether Vanostrand had completed the reentry program.
At a hearing on June 12, 2015, the prosecutor informed the court that he contacted TCP and was informed that Vanostrand completed the residential treatment program but did not complete the program's outpatient reentry program. Vanostrand was supposed to participate in an outpatient reentry program where he would work and "try to live his life outside the confines of a[n] in-custody residential program." Vanostrand, however, left the TCP and did not complete its reentry program because he wanted to complete it at the Glad Tidings Church. The prosecutor noted that they had given Vanostrand an additional six months to complete the TCP reentry program, that Vanostrand should not have been out of custody, and that he should have been transported back to court to be sentenced as soon as he finished the TCP.
Defense counsel responded that he was informed that the Glad Tidings Church was part of the reentry program and that there was an issue regarding where Vanostrand would be living because Vanostrand had married and his wife was expecting a child.
After further discussion, the prosecutor again noted that Vanostrand's plea agreement provided he was not to be out of custody and that as soon as he was released from the inpatient program, he was supposed to have been immediately transported back to surrender to the court. Nevertheless, the prosecutor indicated that because Vanostrand successfully completed the TCP, he was asking that Vanostrand be sentenced only to a six-year term.
Defense counsel then asked the court to consider a lesser sentence based on Vanostrand having done very well in the TCP or that the court at least give him credit for the time he spent in the inpatient program. After explaining that it was bound by the plea agreement, which only the prosecutor could agree to modify, the court took a recess to allow defense counsel and the prosecutor to confer. After the break, the prosecutor informed the court that he agreed Vanostrand could receive one year of custody credit, but no conduct credit, for the time he spent in the inpatient program. Following further discussion, defense counsel asked the court to stay the proceedings and allow Vanostrand to remain out of custody because his wife was pregnant with a due date in July. The court agreed and continued Vanostrand's sentencing hearing. During the hearing, Vanostrand did not disclose that four days earlier he had been arrested on a drug charge in San Mateo County.
On August 17, 2015, after Vanostrand failed to appear at a hearing that day, the prosecutor informed the court that Vanostrand was in custody in San Francisco County on charges of first degree burglary and auto theft. The prosecutor also informed the court that Vanostrand had been arrested on a drug charge in San Mateo County. The court issued a no bail bench warrant for Vanostrand's arrest.
On January 5, 2016, despite having been released on his own recognizance in the San Francisco County case, Vanostrand again failed to appear in court. Later that morning, he was arrested on the outstanding warrant.
On January 8, 2016, the court found that Vanostrand did not successfully complete the TCP because he did not complete the reentry program and he committed new offenses. After hearing argument from defense counsel, the court struck one prison term enhancement and sentenced Vanostrand to an aggregate term of eight years four months: a doubled, middle term of six years on his vehicle theft conviction, a doubled, consecutive 16-month term on his evading conviction, and a one-year prison term enhancement. The court put the matter over to allow the probation department to calculate Vanostrand's presentence custody credit. However, before it continued the hearing to January 14, 2016, it obtained Vanostrand's "waiver of time for further sentencing so it [could] get [his] credits from [p]robation."
On January 14, 2016, there were still "some issues" with calculating Vanostrand's presentence custody credit and the court continued the hearing until January 22, 2016, after obtaining from Vanostrand a waiver of time "for continued sentencing."
On January 22, 2016, the court awarded Vanostrand 1,197 days of presentence custody credit; 599 days of presentence actual custody credit and 598 days of presentence conduct credit. Vanostrand's award of presentence custody credit did not include any credit for the time Vanostrand spent as an inpatient in the TCP.
Vanostrand's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a supplemental brief filed on July 18, 2016, Vanostrand contends: (1) he should have been sentenced to a six-year term because he successfully completed the rehabilitation program and at the June 12, 2015, hearing the prosecutor and the court agreed he had; (2) he is entitled to credit in the instant case for his time in custody in San Francisco County from August 3, 2015, through December 10, 2015, because defense counsel had told him that Stanislaus County placed a hold on him in those cases; and (3) he is entitled to credit for the time he spent in the TCP. There is no merit to these contentions.
DISCUSSION
The Court Correctly Sentenced Vanostrand to an Aggregate Prison Term of Eight Years Four Months
Some plea bargains contain waivers commonly known as "Vargas waivers" or "Cruz waivers," which specify that a defendant will be released from custody and will receive a reduced sentence if he or she appears for sentencing, or will receive an increased punishment if he or she fails to appear. (People v. Masloski (2001) 25 Cal.4th 1212, 1215, 1222-1223.) By agreeing to the plea bargain's imposition of "a sanction for nonappearance" (People v. Casillas (1997) 60 Cal.App.4th 445, 452), the defendant waives his or her section 1192.5 right to withdraw the plea if sentenced to the increased term upon failure to appear. (Vargas, supra, at pp. 1112-1113.)
People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).
Section 1192.5 entitles a defendant to withdraw his plea if the trial court does not approve, or withdraws its approval of, the plea bargain.
Here, the court released Vanostrand pursuant to a waiver that was similar to a Cruz/ Vargas waiver in that it provided for increased punishment if Vanostrand did not successfully complete the TCP or surrender himself into custody immediately upon being released from the program. Further, Vanostrand clearly violated the terms of the waiver and his plea bargain when he failed to complete the reentry program at the TCP or at the Glad Tidings Church and when he failed to surrender himself into custody immediately upon leaving TCP on April 12, 2015. Therefore, the court did not violate Vanostrand's plea bargain when it sentenced him to a prison term of eight years four months.
At the June 12, 2015, hearing the prosecutor agreed that Vanostrand could be sentenced to a six-year term and receive one year of credit for the time he spent in the TCP. However, we are satisfied that the prosecutor agreed to modify the original agreement only because Vanostrand did not disclose that he had recently been arrested on a drug charge in San Mateo County. --------
Vanostrand Is Not Entitled to Credit in the Instant Case for His Time in Custody in San Francisco County
Section 2900.5 subdivision (a) provides:
"(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order,
credited to the period of confinement pursuant to Section 4019, and days served in home detention ..., shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, ....
"(b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. ..." (Italics added.)
"The California Supreme Court has interpreted the language of ... section 2900.5, subdivision (b) to mean 'a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct [that] led to his conviction was the sole reason for his loss of liberty during the presentence period.' [Citation.] Thus, presentence custody credits should be denied toward a new term when such custody is 'attributable to a parole revocation caused in part, but not exclusively, by the conduct that led to the new sentence.' [Citation.] To be entitled to presentence custody credits, a defendant must establish that 'the conduct [that] led to the sentence was a dispositive, or "but for," cause of the presentence custody.' " (People v. Kennedy (2012) 209 Cal.App.4th 385, 392.)
In his supplemental brief, Vanostrand contends he is entitled to credit in the instant case for the time he spent in custody on the San Francisco charges because defense counsel told him that a hold had been placed on him in the San Francisco case based on the warrant that was issued in the instant case. However, Vanostrand was in custody on new charges in San Francisco County. Thus, even if a hold based on the instant case was placed on Vanostrand while he was in custody in the San Francisco case as he contends, he would not be entitled to credit in the instant case for his custody in San Francisco County because the hold would not have been the "but for" cause of his custody there.
Vanostrand Is Not Entitled to Credit for Time He Spent in the TCP
The court could not order Vanostrand to participate in the TCP because Vanostrand's prior strike conviction divested the court of jurisdiction to commit him to that program. (§ 667, subd. (c)(4).) Instead, it released Vanostrand from custody on his own recognizance so he could voluntarily participate in an inpatient drug rehabilitation program at TCP. A defendant, however, is not entitled to presentence credit for voluntarily participating in a residential treatment program. (People v. Pottorff (1996) 47 Cal.App.4th 1709, 1717, fn. 9.) Thus, Vanostrand is not entitled to presentence credit for the time he spent in the TCP. For Purposes of Calculating Presentence Custody Credit , Vanostrand was Sentenced on January 22 , 2016
In response to our briefing letter to the parties, Vanostrand contends he was sentenced on January 22, 2016, because the court continued the sentencing hearing until that date to calculate his presentence custody credit. We agree.
"In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both [citation]." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Additionally, " '[t]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also id., subd. (a).)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30; see Cal. Rules of Court, rules 4.310, 4.472.) "A sentence that fails to award legally mandated custody credit is unauthorized." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) California Rules of Court, rule 4.433(d), provides that sentencing must occur and be determined in a single hearing unless the sentencing judge orders otherwise in the interests of justice. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044 [discussing predecessor rule, former rule 433(d)].)
Here, Vanostrand consented to the continuance of the sentencing hearing until Jaunary 22, 2016, and, in any case, good cause existed for continuing the hearing until that date as it allowed the court to comply with its duty to ascertain his entitlement to presentence custody credit. Thus, we conclude that for purposes of calculating presentence custody credit, appellant was sentenced on January 22, 2016. (Cf. People v. Lacebal (1991) 233 Cal.App.3d 1061, 1066 [defendant sentenced on May 2, 1990, in case No. 8834 entitled to presentence custody credit for time in custody from that date until November 29, 1990, when he was sentenced in second case and resentenced in case No. 8834].) In view of this we further conclude that the court's award of 28 days of presentence custody credit (14 days of presentence actual custody credit and 14 days of presence conduct credit) for the time Vanostrand spent in custody from January 9, 2016, through January 22, 2016, did not constitute an unauthorized sentence.
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.