Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-070232-4
Kline, P.J.
Tynesha West appeals from a plea of no contest to all 70 counts of an information filed in the Contra Costa Superior Court charging her with passing fictitious checks, identity theft, burglary, receiving stolen property and numerous other offenses committed in multiple counties. Though the accusations of the information are made by or in behalf of the District Attorney of Contra Costa County, this 36-page charging document is signed on behalf of the Attorney General by Deputy Attorney General Keith Lyon, who also appeared in behalf of the People at the preliminary hearing. The unusual participation of the Attorney General in the trial court proceedings is presumably explained by the fact that, as will be seen, the numerous charged offenses were committed in multiple counties.
Appellant’s court-appointed attorney initially filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
The facts are taken from a summary of the offenses set forth in the probation report.
Appellant was arrested by the Concord police on July 29, 2006, after she was found in possession of a rental car that had been reported as stolen. Appellant gave the police a fictitious name and was in possession of a fictitious California driver’s license. Numerous items of clothing and gift cards were found in the rental car, together with receipts from stores located in nine counties.
Based on information obtained from the Attorney General’s office, the probation report states that appellant committed burglaries at numerous schools where she stole teachers’ wallets. Appellant used identifications taken from the driver’s licenses, credit cards, and checks she found in the wallets to make fictitious driver’s licenses and other forms of false personal identification. These fictitious identifications were then used to purchase merchandise or gift cards with fake credit cards or checks, although false identifications were also used to rent cars and apartments.
In all, appellant stole the identities of 12 persons, and 13 schools and 12 retail establishments were the target of burglaries. She also stole six automobiles, one of which was purchased with a counterfeit check and the remaining five were rented with stolen credit cards. Finally, appellant passed three forged checks.
On February 16, 2007, the Attorney General filed a 70-count information charging appellant with three counts of making, possessing, and passing a fictitious check (Pen. Code, § 476), 12 counts of identity theft (§ 530.5), 24 counts of commercial burglary (§ 459/460, subd. (b)), six counts of auto theft (Veh. Code, § 10851, subd. (a)), two counts of grand theft (§ 487, subd. (a)), 21 counts of petty theft with a prior theft conviction (§ 484/666), one count of giving false information to a police officer (§ 148.9), and one count of receiving stolen property (§ 496, subd. (a)).
All statutory references are to the Penal Code unless otherwise indicated.
The information additionally alleged that (1) numerous counts were committed in multiple counties (§ 781); (2) the value of loss for the crimes exceeded $50,000 (§ 12022.6, subd. (a)(1)); (3) appellant had prior prison terms (§ 667.5, subd. (b)); (4) the charged offenses were committed while appellant was on release from custody on her own recognizance (§ 12022.1); (5) the charges involved the taking of property worth more than $100,000 (§ 186.11, subd. (a)); and (6) appellant was therefore ineligible for probation (§ 1203.045, subd. (a)).
On November 8, 2007, appellant pled no contest to all of the charged counts except the sole misdemeanor count charging the giving of false information to a police officer, to which she pled guilty, and admitted all of the enhancements. In return, the court indicated appellant would be sentenced to state prison for the term of five years.
On December 14, 2007, the date scheduled for sentencing, the trial court set aside appellant’s previously entered plea of guilty to the one misdemeanor count and her pleas of no contest to the remaining 69 counts. The court’s previous finding of guilt as to all counts was also set aside forthwith. Finally, the court reinstated appellant’s previous pleas of not guilty as to all counts. These actions were taken after the court received “new information” (presumably that set forth in the probation report) including that “numerous out-of-county holds” had been placed on appellant due to “other identity-theft related crimes,” and that appellant had engaged in numerous disruptive acts while in pretrial detention, including fights with other detainees, possession of contraband and threatening jail staff. The court apparently indicated by this action that it was no longer willing to adhere to the terms of the negotiated plea, which called for a five-year state prison term.
Appellant sought reconsideration of those rulings on April 8, 2008, and the Attorney General opposed the motion. The motion was denied. Appellant thereupon filed a petition for writ of mandate and/or prohibition in this court, which we denied on May 13, 2008.
On August 6, 2008, appellant plead no contest to all 70 counts on the basis of a negotiated disposition contemplating a seven-year state prison term. Appellant also entered a so-called “Arbuckle waiver,” giving up her right to be sentenced by the same judge who had taken her plea on the basis of the disposition initially negotiated. (People v. Arbuckle (1978) 22 Cal.3d 749.)
On August 28, 2008, pursuant to another agreed-upon disposition, appellant was sentenced to a state prison term of seven years (arrived at by imposing the two-year midterm for the offense charged by count 1, plus eight months (one-third the midterm) for each of the offenses charged in counts 2 through 7 (four years total), plus one year for the prior prison term enhancement). The court also imposed a three-year concurrent sentence for the offenses charged in counts 8 through 70 of the information. The remaining enhancements and prior conviction allegations were dismissed by the Attorney General.
The abstract of judgment indicates appellant was awarded 762 days credit for time served and 380 days of conduct credit. The court also imposed a restitution fine of $1,400, and imposed but stayed a parole revocation fine in the same amount. (§ 1202.4, 1202.45.)
The court granted appellant’s request for a certificate of probable cause on August 29, 2008, and a timely notice of appeal was filed on September 4, 2008. As noted, appellant’s counsel filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436.
DISCUSSION
Our Wende review initially disclosed no issue requiring further briefing. During the period of time from arraignment to sentencing, appellant was represented by able counsel. There is no basis in the record upon which to doubt appellant’s mental competence to participate in the proceedings and enter her plea. The trial court fully informed appellant of the consequences of her plea and the rights she would be giving up by the plea before it was entered. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, 132.) Appellant waived those rights orally and in writing, which satisfies us that her plea was fully informed and freely made. Also, appellant’s trial counsel stipulated to a factual basis for the plea based on the police and investigative reports.
The record does, however, present an unusual sentencing issue we believed required further briefing.
The clerk’s docket and minutes for the final sentencing hearing held on August 28, 2008 states that appellant was awarded 762 days of credit for time actually served, and 380 days for “conduct credit,” which is the maximum amount of conduct credit allowed by law. (§ 4019, subd. (f) [“if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody”]; see also People v. Smith (1989) 211 Cal.App.3d 523, 525-527 [method for calculating presentence conduct credits].) Similarly, the abstract of judgment states that appellant was awarded total credits of 1,142 days, consisting of 762 days for time served and 380 days for “local conduct.”
The problem is that the transcript of the final sentencing hearing held on August 28, 2008 is entirely silent on the issue of conduct credit.
The court explicitly addressed only the issue of credit for time actually served in pretrial detention. Noting that appellant’s “[c]redits as of August 6th [2008]” were “740 actual days,” the court agreed with defense counsel that, since appellant remained in custody on August 28th, “we can add another 22 days.” At that point the court turned to the issue of restitution and never later said anything about conduct credit.
The record provides reason to think the court’s failure to award conduct credit may have been intentional, not inadvertent. If that is the case, the provision of the abstract of judgment awarding appellant 380 days conduct credit is unjustified and inexplicable.
The probation report notes that appellant’s conduct in county jail was highly disruptive. Citing the “Incident Reporting Screen” from the Sheriff’s Department, the probation report states as follows: “On March 20, 2007, the defendant and another inmate were involved in a physical altercation and were separated. Both were found guilty and received a lockdown with three weeks loss of privileges. [¶] On May 8, 2007, the defendant was involved in disruptive conduct and was found guilty. She received ten days lockdown and three weeks loss of privileges. [¶] On June 2, 2007, the defendant was involved in ‘disruptive conduct’ in which a picture was removed from her window. She received three days lockdown and one week loss of privileges. [¶] On July 27, 2007, the defendant was involved in ‘disruptive conduct’ at which time she slammed her door in defiance of an early lockdown and yelled profanities. She received 48 hours lockdown. [¶] On August 19, 2007, the defendant was in possession of contraband and became insolent and insubordinate. She received two days lockdown with three weeks loss of privileges. [¶] On November 24, 2007, the defendant reportedly threatened a staff member and mental health was notified. She was found guilty of interfering with a staff member, although no sanction was imposed, and it was possibly a misunderstanding. The defendant was admonished.”
The probation report also states that “[o]n December 6, 2007, the defendant was involved in a fight with another inmate and she was separated and returned to her room. She was found not guilty and reportedly acted in self-defense.”
Section 2900.5, subdivision (a), provides, as material, that in a case such as this “all days of custody of the defendant... including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment....”
Section 4019, subdivisions (b) and (c), provide that for each six-day period in which a prisoner is confined in or committed to pretrial detention, “one day shall be deducted from his or her confinement” unless the prisoner has “refused to satisfactorily perform labor as assigned by the sheriff” (subd. (b)), and an additional day shall be deducted unless the prisoner has “not satisfactorily complied with the reasonable rules and regulations established by the sheriff” (subd. (c)). In other words, where the prisoner satisfactorily complies with the sheriff’s rules and regulations and performs work assigned by the sheriff, he or she gets two days of good time credit for every six days actually served. Where the prisoner fails to comply with one of the requirements he or she gets only one day of credit for every six days served; and where the prisoner complies with neither requirement he or she gets no conduct credit.
Appellant could be awarded 380 days of conduct credit only if no deductions are made from her pretrial confinement, which implies a finding that—despite evidence in the record to the contrary—she satisfactorily complied with rules and regulations established by the sheriff and performed labor assigned by the sheriff.
“In a California criminal case, judgment is rendered when sentence is orally announced.” (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3; § 1202.) “When judgment upon a conviction is rendered, the clerk... must enter the judgment in the minutes, stating briefly the offense for which the conviction was had....” (§ 1207.) It is presumably this entry, commonly referred to as the “abstract of judgment,” and not the transcript of the sentencing hearing, that is provided the Department of Corrections and determines the amount of time appellant serves in prison.
It has been held that an inaccuracy in description of the offense may be cured by reference to the record. (People v. Becker (1947) 80 Cal.App.2d 691, 694.) Case law also establishes that the oral pronouncement of the court supersedes the minute order and abstract of judgment prepared by the clerk. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [conflict between reporter’s transcript and clerk’s minute order]; People v. Mesa (1975) 14 Cal.3d 466, 471 [conflict between reporter’s transcript and abstract of judgment].)
The problem presented is that omission of any reference to conduct credit in the court’s oral pronouncement creates uncertainty. It may reflect an intention to deny conduct credit, but it may well have been simply inadvertent. Moreover, while the probation report provides reason to think the court may have intended to deny conduct credit for “good time” under subdivision (c) of section 4019, due to appellant’s apparent failure to comply with the sheriff’s rules and regulations, the report does not clearly establish that appellant “refused to satisfactorily perform labor as assigned by the sheriff,” so that she might be eligible for partial conduct credit under subdivision (b) of section 4019.
Our April 22, 2009 order directed counsel who filed appellant’s Wende brief to file a supplemental brief explaining, if possible, (1) the basis, if any, for the conduct credit specified in the minutes and abstract of judgment; and, if there is none, (2) any other basis upon which the minutes and abstract of judgment may be deemed to conform to the judgment imposed at the sentencing hearing; and, if there is none, (3) why this court should not remand the case to the trial court for clarification as to whether the clerk’s minutes and abstract of judgment accurately reflect the court’s determination to award appellant 380 days of conduct credits and, if they do not reflect the court’s intention, to correct or modify the minutes and abstract of judgment.
With respect to the first question, appellant agrees there is a presumption that a discrepancy between the judgment as orally pronounced and as entered in the minutes is the result of clerical error (People v. Farell, supra, 28 Cal.4th at p. 384, fn. 2; People v. Mesa, supra, 14 Cal.3d at p. 471), and emphasizes that the presumption is rebuttable. According to appellant, the presumption is rebutted by the clerk’s minutes on the date appellant was sentenced, which awards an amount of total credits (1,142 days) that clearly included 380 days for good conduct. As appellant sees it, we “can fairly presume” from the trial judge’s signature at the bottom of the minute sheet, “that the calculations were made by the clerk before the Judge signed the minutes, and that the Judge looked at and saw that the minutes awarded appellant the conduct credits she would normally be entitled to.” Furthermore, appellant argues, because she was statutorily entitled to good-time/work-time credits under sections 2900.5 and 4019, subdivisions (b) and (c), “in the absence of an express denial of conduct credits it should be assumed that the entitlement was operative.” In appellant’s view, “the lack of any express denial of conduct credits only indicates that Judge Landau forgot to state on the record the conduct credits appellant was entitled to.”
Appellant also denies that the record provides sufficient reason to think that the trial court’s failure to award conduct credits may have been intentional, stating as follows: “The Incident Reporting recounting appellant’s poor conduct referred to six incidents of misconduct (she was found to have acted in self defense in the seventh, all of which were committed prior to November 2007. The only time these incidents were mentioned by the trial court was on December 14, 2007, when Judge Davis Stark referred to them as one of the reasons the court believed her five-year plea was too lenient, and thus the court was not going to accept appellant’s plea, and allowed her to withdraw it. On August 6, 2008, when Judge Grant accepted appellant’s plea (based on a plea-bargain arrived at with Judge Landau, there was no mention that the plea-bargained sentence would include a loss of conduct credits. All that was said was that appellant would be sentenced to seven years ‘less any credits.’ On August 28, 200[8], at appellant’s sentencing, again there was no express comment by Judge Landau denying appellant conduct credits. These circumstances all belie any intention by Judge Landau to, without notice or comment to anyone, deny appellant all of the conduct credits for her over two years of pre-trial custody based on her misconduct committed approximately 10 months previously. It is even more improbable, given that from November 2007 until her sentencing in August 200[8], there is no evidence that appellant was involved in any further misconduct.”
Appellant’s supplemental brief mistakenly, and doubtless inadvertently, repeatedly indicates that appellant was sentenced on August 28, 2009, when in fact the hearing was on that date a year earlier, in 2008.
According to appellant, “[i]t is far more likely that Judge Landau inadvertently failed to give appellant the conduct credits to which she was entitled.” For the proposition that the record supports the conclusion that Judge Landau unintentionally failed to award appellant conduct credits he intended to award, rather than that he intentionally denied such credits, appellant relies upon People v. Eastman (1993) 13 Cal.App.4th 668 (Eastman). That case is in our view inapposite.
The defendant in Eastman complained that he was not awarded conduct credits for the 18 days of actual presentence custody served by the failure to raise the objection at the sentencing hearing. The issue presented on appeal was whether the doctrine of waived error prohibited appellant from complaining on appeal by his failure to raise the objection at the sentencing hearing, at which time the error, if any, could have been corrected at trial. The Court of Appeal found there was no waiver, because “the failure to mention them at sentencing was a mere omission which appellant could not have anticipated would not be corrected in the written orders.” (Eastman, supra, 13 Cal.App.4th at p. 679.) Waiver of the right of appeal is not an issue in the present case. Furthermore, the language in Eastman appellant relies upon relates to a factual situation materially different from that in this case. The Eastman court found that the failure to mention the credits at the sentencing hearing was “a mere omission which appellant could not have anticipated would not be corrected in the written orders” because the case was not one “in which waiving credits would serve any purpose for either side. Appellant had only 18 days of custody and 8 days of conduct credit, leaving 338 days of jail time available, and the court required only 210 days as a condition of probation.” (Id. at p. 679, italics added.) Because the court found it “obvious” that the court simply forgot to include the custody credits, it remanded for a recalculation of the credits. (Id. at pp. 670-680.) In the present case, unlike Eastman, the reason for and meaning of the trial court’s failure to mention conduct credits is not at all “obvious.”
Though Judge Landau may have intended to award appellant the full amount of conduct credit he could have awarded her under subdivisions (b) and (c) of section 4019, we conclude that the record is insufficiently clear. Due to the uncertainty, we remand the case to the trial court for clarification of its determination whether to award or deny appellant conduct credits in whole or in part. Nothing in this opinion should be thought to suggest that this court has any position on the issue we direct the trial court to address.
In all other respects the judgment is affirmed.
We concur: Haerle, J., Lambden, J.