Opinion
E068932 E069843
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT RAY ARNAIZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton, Daniel Rogers, Christopher P. Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1403383 & BAF1600088) OPINION APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge. Affirmed in part and reversed in part with directions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton, Daniel Rogers, Christopher P. Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Robert Ray Arnaiz, pled guilty to assault by means of force likely to cause great bodily injury (count 2; Pen. Code, § 245, subd. (a)(4)) and admitted suffering a prior strike conviction (§ 667, subds. (c), (e)(2)(A)) pursuant to a plea agreement in Superior Court case No. BAF1600088. Defendant contemporaneously pled guilty to possessing a dirk or dagger (count 1; § 21310) and admitted suffering a prior strike conviction (§ 667, subds. (c), (e)(2)(A)) pursuant to a plea agreement in Superior Court case No. SWF1403383. In accordance with the plea agreements, the court sentenced defendant to six years of incarceration in BAF1600088 and a consecutive 16 months of incarceration in SWF1403383. The court awarded defendant a total of 1,105 days of custody credits in BAF1600088, but no custody credits in SWF1403383.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends his plea in SWF1403383 should be vacated because the court failed to establish an adequate factual basis for the plea. Defendant additionally maintains the judgment should be reversed and remanded to the trial court to determine whether it should award defendant additional custody credits. We reverse and remand the matter for a calculation of additional custody credits to which defendant may, if any, be entitled. In all other respects, the judgment is affirmed.
Defendant initially appealed the judgment in both cases in case No. E068932; he requested a certificate of probable cause, which the court granted. The sole issue he raised originally was whether the court took an adequate factual basis for the plea. However, defendant later filed a request to file a supplemental brief, which we granted. In the supplemental brief, defendant raised the issue of whether the court should have awarded him additional custody credits. Defendant had previously filed a letter in the superior court requesting conduct credits in SWF1403383. A minute order dated July 19, 2017, reflects the court determined to take no action on defendant's letter. Appellate counsel later filed a motion for an award of additional custody credits in SWF1403383. The court determined to take no action upon the motion as well. Appellate counsel filed another notice of appeal based upon the court's refusal to take action on the motion. We consolidated the appeals for purposes of oral argument and decision.
I. FACTUAL AND PROCEDURAL HISTORY
The facts in BAF1600088 are not relevant to the issues raised on appeal; therefore, they are omitted from our factual recitation.
On November 13, 2014, an officer on patrol observed defendant walking. He attempted to contact defendant and saw him place an object inside his mouth. He and another officer detained defendant. They extracted the object from defendant's mouth. It was later determined to be 0.1 grams of heroin.
During a search incident to defendant's arrest, the officer found a knife in defendant's right rear pocket. The officer described the knife as follows: "[A] folding knife. However, when I located it, it was a—it was in a locked and fixed position. The blade was—the blade was approximately three inches long, single-edged." The court asked if the knife was "[l]ocked, with the blade extended?" The officer responded: "Yes, ma'am." The prosecutor then queried: "And you said this knife—that, when you found it, it was fully locked—the blade was exposed when you found it in his pocket?" The officer responded: "Correct."
On October 9, 2015, the People charged defendant by felony information in SWF1403383 with carrying a concealed dirk or dagger (count 1; Pen. Code, § 21310) and misdemeanor possession of heroin (count 2; Health & Saf. Code, § 11350, subd. (a)). The People additionally alleged defendant had suffered five prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike conviction (Pen. Code, § 667, subds. (c), (e)(2)(A)).
On February 10, 2017, in BAF1600088 the People charged defendant by felony information with assault with a deadly weapon (count 1; § 245, subd. (a)(1)) on or about January 18, 2016. The People additionally alleged defendant had personally inflicted great bodily injury in his commission of the count 1 offense (§ 12022.7, subd. (a)) and had committed the offense while released from custody prior to judgment (§ 12022.1). The People further alleged defendant had suffered five prior prison terms (§ 667.5, subd. (b)) and one prior strike conviction (§ 667, subds. (c), (e)(2)(A)).
On June 30, 2017, defendant entered guilty pleas as recounted above. As part of his plea agreement in SWF1403383, defendant waived his right to appeal the judgment and agreed to a total amount of custody credits of 1,105 days. In his plea agreement in BAF1600088, defendant initialed the provision regarding waiver of appeal rights, but neither the "do" nor "do not" indicators are circled. Defendant agreed to an award of a total of 1,060 days of custody credits.
After entering his pleas, the following colloquy between the court and defendant occurred:
"THE COURT: Is it true, sir, that on November 13th of 2014, you had in your possession a dirk that was concealed under your clothing?
"THE [DEFENDANT]: It was in my back pocket.
"THE COURT: In your back pocket?
"THE DEFENDANT: Yeah.
"THE COURT: Was any of it sticking out?
"THE DEFENDANT: No, it was a three-inch knife.
"THE COURT: Okay. Was it—was it a pocket knife or a knife?
"THE DEFENDANT: Pocket knife, folding pocket knife. Three-inch pocket knife.
"THE COURT: If it's [a] folding pocket knife, I don't think that qualifies as [a] dirk or dagger."
Defense counsel then offered to stipulate that the preliminary hearing transcript would provide a factual basis for the plea. The People joined the stipulation. The court found the preliminary hearing transcript would provide a factual basis for the plea.
The court immediately sentenced defendant as recounted above and as provided by the plea agreements. The court awarded defendant 530 actual days plus 530 good time days for a total of 1,060 days of conduct credits in BAF1600088. The court awarded 553 actual days plus 552 good time days for a total of 1,105 days of conduct credits in SWF1403383. The People then noted: "He's got zero credits on the second case because it's consecutive." The probation officer observed: "He should only get credits on one of the cases. He can get the credits 553 plus 552 for the 1105." The court responded: "That would be the most credits?" The probation officer replied: "But only on one case." The court then awarded 1,105 days of total conduct credits in BAF1600088 "[b]ecause these times are running consecutive, he's not entitled to credits in both cases since it's consecutive and combined into one sentence." Defense counsel responded: "Right."
II. DISCUSSION
A. Factual Basis for the Plea
Defendant contends his plea in SWF1403383 should be vacated because the court failed to establish an adequate factual basis for the plea. We disagree.
"[T]he trial court is required by statute to conduct an inquiry to establish the existence of a factual basis for a conditional plea of guilty or no contest." (People v. Voit (2011) 200 Cal.App.4th 1353, 1365 (Voit).) "'While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the "constitutional standards of voluntariness and intelligence are met." [Citation.]' [Citation.] The inquiry also protects against an innocent person entering a guilty plea and creates a record against possible appellate or collateral attack. [Citation.]" (Ibid., fn. omitted.)
"However, a plea of guilty . . . waives an appellate claim of the nature 'there is insufficient evidence supporting my plea.'" (Voit, supra, 200 Cal.App.4th at p. 1365.) "[A] plea of guilty . . . forecloses an appellate challenge that the plea lacks a factual basis. Section 1192.5 requires a factual inquiry by the trial court, not by the appellate court. Particularly where a defendant not only personally pleads . . . but also personally or through counsel concedes the existence of a factual basis for his or her pleas . . . ." (Id. at p. 1366.) A defendant is estopped from arguing on appeal what he has already conceded below, that there is a factual basis for his plea. (Id. at p. 1359.)
"'As to the merits, the plea is deemed to constitute a judicial admission of every element of the offense charged. [Citation.] Indeed, it serves as a stipulation that the People need introduce no proof whatever to support the accusation: the plea ipso facto supplies both evidence and verdict. [Citation.]'" (Voit, supra, 200 Cal.App.4th at p. 1363.) "'A guilty plea "admits every element of the crime charged" [citation] and "is the 'legal equivalent' of a 'verdict' [citation] and is 'tantamount' to a 'finding' [citations]" [citation].' [Citation.]" (Id. at p. 1364.) "'"A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." [Citation.]'" (Id. at pp. 1363-1364.) "Issues concerning the defendant's guilt or innocence are not cognizable on appeal from a guilty plea. [Citations.] By admitting guilt a defendant waives an appellate challenge to the sufficiency of the evidence of guilt. [Citations.]" (Id. at p. 1364.)
"It is our position that an appellate court should not engage in a substantive review of whether there is an evidentiary or factual basis for a defendant's . . . plea simply because the defendant contradicts on appeal what he admitted in the trial court. The doctrine of judicial estoppel appears apt." (Voit, supra, 200 Cal.App.4th at p. 1370 [declining to review the preliminary hearing transcript and police report, to which defendant stipulated would provide the factual basis for the plea, to determine whether there was sufficient evidence to support the crimes to which defendant pled no contest]; People v. Nitschmann (2010) 182 Cal.App.4th 705, 709 ["Appellant is estopped from attacking a procedure to find a factual basis for the plea that he agreed could be utilized."]; People v. Borland (1996) 50 Cal.App.4th 124, 127 ["Appellant may not enter into a negotiated disposition for an offense with a specified charging date, enjoy the fruits thereof, and then challenge the factual basis for the plea on appeal."].)
The court in Voit recognized that the court in People v. Marlin (2004) 124 Cal.App.4th 559, relied upon by defendant, provided contrary authority. However, the Voit court rejected Marlin on several bases: Marlin was dictum because the People did not contend the appellate court was precluded from considering the factual basis for the plea, the issue was not contested, there was no attempt to distinguish authority holding that the sufficiency of the evidence of guilt was cognizable on an appeal, and that Marlin's determination that holding otherwise would make the issue unreviewable was inconsequential considering the same could be said of any issue which courts have determined a defendant can waive or forfeit. (Voit, supra, 200 Cal.App.4th at p. 1368.) We agree with the court in Voit that Marlin consists largely, if not wholly, of distinguishable dictum and is therefore not persuasive.
Defendant also relies on People v. Palmer (2013) 58 Cal.4th 110, in which the court noted the split of authority between Marlin and Voit (People v. Palmer, supra, at pp. 114-115), but found those cases distinguishable because the defendants in those cases stipulated that a specific document would provide the factual basis for the plea whereas the defendant in Palmer entered a bare stipulation that a factual basis for the plea existed (id. at p. 115). Thus, the Palmer court held that defendant's claim that an insufficient basis for his plea did not exist was not forfeited, waived, or estopped. (Id. at p. 117.) However, the Palmer court ultimately held that the parties' bare stipulation that a factual basis for the defendant's no contest plea existed was sufficient for statutory purposes. (Id. at p. 119.) Thus, the court affirmed the defendant's conviction. (Ibid.)
Here, unlike in Palmer, defendant stipulated that a specific document, the preliminary hearing transcript, would provide a factual basis for defendant's guilty plea. Moreover, even assuming arguendo that we could reach defendant's claim, even the Palmer court upheld the defendant's conviction against an attack of the factual basis for the plea. Furthermore, the preliminary hearing transcript provided sufficient evidence of defendant's guilt. The officer testified defendant's knife "was in a locked and fixed position." The court asked if the knife was "[l]ocked, with the blade extended?" The officer responded: "Yes, ma'am." Thus, even if defendant is not estopped from raising the issue on appeal, the factual basis for his guilty plea contained sufficient evidence of his guilt. (People v. Castillolopez (2016) 63 Cal.4th 322, 329 [a folding knife qualifies as a dirk or dagger under the current version of the statute if it is "'exposed and locked into position.'" (Fn. omitted.)].) B. Custody Credits
Defendant contends the matter should be remanded for recalculation of his custody credits. The People respond that defendant waived his right to appeal as part of his plea agreement and explicitly agreed to the custody credits he received. Thus, the People maintain appeal No. E069843 should either be dismissed, or we should affirm the judgment. We agree with defendant.
As defendant observes, he was charged in SWF1403383 with carrying a dirk or dagger on November 13, 2014. It is unclear from the record when defendant was initially incarcerated, although a minute order dated August 14, 2015, reflects defendant was remanded to custody. Another minute order, dated October 14, 2015, also reflects defendant was remanded to custody. A minute order dated November 19, 2015, reflects defendant's "Current Bail Bond Continued." Defendant committed the offense in BAF1600088 on January 18, 2016, apparently while on release from custody in SWF1403383.
"[I]t is well settled that a plea bargain may include a waiver of the right to appeal." (People v. Buttram (2003) 30 Cal.4th 773, 791 (conc. opn. of Baxter, J.).) "'Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of the waiver is a question of law which appellate courts review de novo. [Citation.]' [Citation.]" (Id. at p. 792.) Defendants may also waive custody credits as part of their plea agreements. (People v. Myers (1999) 69 Cal.App.4th 305, 312 [defendant who, through counsel, stipulated to the amount of presentence custody credits forfeited any alleged error in calculation]; People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055 ["[A] defendant may expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody."]; People v. Arevalo (2018) 20 Cal.App.5th 821, 830 [same].)
However, failure to object to a court's determination of custody credits does not forfeit the issue on appeal. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) This is because failure to award custody credits to which a defendant is entitled is an unauthorized sentence which may be corrected at any time. (People v. Cardenas (2015) 239 Cal.App.4th 220, 235.) "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, . . . shall be credited upon his or her term of imprisonment . . . ." (§ 2900.5, subd. (a).) "[C]redit 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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (§ 2900.5, subd. (b).)
Here, defendant initialed the provision of his plea agreement in BAF1600088 respecting the waiver of the right to appeal the judgment; however, the language reflecting whether defendant either did or did not waive that right is not circled as is the waiver in SWF1403383. Thus, we cannot hold that defendant voluntarily waived his right to appeal the judgment in that case. Likewise, nothing in defendant's plea agreement in BAF1600088 reflects an intent to waive his entitlement to custody credits. Quite the contrary, his plea agreement in BAF1600088 expressly reflects he would be receiving a total of 1,060 days of presentence custody credit.
To be sure, every indication is that the parties intended that defendant would be waiving his appeal rights; however, we will not infer such a waiver where none appears expressly on the record.
The abstracts of judgment and sentencing minute orders erroneously reflect the court awarded defendant 1,105 days of custody credits in BAF1600088 and zero credits in SWF1403383. In fact, the court ordered exactly the opposite: "So in case ending 088, the defendant has credits of zero. In light of the fact that he's serving consecutive sentences, he'll be given the greater amount of credits in case ending 383. That's 553 plus 552 for total of 1105. Because these times are running consecutive, he's not entitled to credits in both cases since it's consecutive and combined into one sentence." Thus, even if defendant is not entitled to any additional custody credits, the abstracts of judgment must be modified to reflect the court's oral pronouncement. (People v. Jones (2012) 54 Cal.4th 1, 89 ["It is well settled that '[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize.'"].)
Both parties agree defendant "was not entitled to credit for the same days of custody against both cases because he received consecutive sentences." (§ 2900.5, subd. (b) ["Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed."].) Thus, defendant is not entitled to an award of all the credits reflected in the plea agreements and the court's original pronouncement. However, as defendant points out, there appears to be a portion of his custody in SWF1403383, served prior to his commission of the offense in BAF1600088, which would not be attributable to the latter offense. Therefore, defendant may be eligible to additional custody credits for that period as long as it was not already reflected in the calculation of custody credits he was ultimately awarded in SWF1403383. On this record it is impossible for this court to determine whether defendant is entitled to any additional conduct credits. Thus, the matter must be reversed and remanded for the court below to evaluate whether defendant is entitled to any additional custody credits.
III. DISPOSITION
The judgment of conviction is affirmed. The matter is reversed and remanded for a limited hearing, in accordance with the views expressed herein, on whether defendant is entitled to any additional custody credits. If so, the court shall award such credits and ensure that the abstracts of judgment and minute orders reflect the court's pronouncements. If not, the clerk of the court shall correct the existing abstracts of judgment and sentencing minute orders to accurately reflect the court's oral pronouncement that custody credits were awarded in SWF1403383, but not in BAF1600088. The trial court shall forward copies of any corrected or modified abstracts of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.