Opinion
F049595
5-17-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMES DANIEL CURRY, Defendant and Appellant.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Levy, J. and Kane, J.
In September 2003, in Tulare County Superior Court case No. VCF111434 (hereafter case No. 1), appellant James Daniel Curry pled no contest to elder abuse (Pen. Code, § 368, subd. (b)) and misdemeanor battery (§ 242), and admitted allegations he had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The trial court imposed a nine-year prison term, suspended execution of sentence, and placed appellant on three years probation, one of the terms of which was that he serve 545 days in county jail.
Except as otherwise indicated, all further statutory references are to the Penal Code.
In October 2005, pursuant to a plea agreement, appellant, (1) in Tulare County Superior Court case No. VCF146467 (hereafter case No. 2) pled no contest to first degree burglary (§§ 459, 460, subd. (a)) and attempted unlawful driving or taking of a motor vehicle (attempted vehicle theft) (§ 664; Veh. Code, § 10851, subd. (a)), and admitted allegations that he had suffered a "strike" and had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)), and (2) in case No. 1 admitted an allegation that he violated his probation.
We use the term "strike" as a synonym for "prior felony conviction" within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
The trial court imposed sentence in both cases in a single proceeding in November 2005. In case No. 1, the court imposed the four-year upper term on the elder abuse conviction. The court did not impose sentence on the battery conviction. In case No. 2, the court imposed sentence as follows: on the burglary conviction, four years, consisting of the two-year lower term, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) and on the attempted vehicle theft conviction, two years eight months, consisting of a term of 16 months, doubled. The court ordered that both terms in case No. 2 run concurrently with the sentence imposed in case No. 1 and awarded presentence custody credit as follows: in case No. 1, 311 days, and in case No. 2, 244 days. The court stayed imposition of sentence on the prior prison term enhancements.
On appeal, appellant argues in his opening brief as follows: (1) The trial court erred in staying the five prior prison term enhancements; (2) the term of two years eight months on the attempted vehicle theft conviction was an unauthorized sentence; and (3) in case No. 1, the court failed to award appellant all the presentence credits to which he was entitled. The People concede the first two of these arguments.
In addition, pursuant to Government Code section 68081 we invited, and the parties submitted, supplemental briefing on the issue of whether the trial court erroneously computed presentence credits in case No. 2. The People argue that the court erroneously utilized the formula set forth in section 4019, rather than less generous provisions of section 2933.1, subdivision (c) (hereafter section 2933.1(c)). Appellant disagrees.
We will strike the five prior prison term enhancements imposed; modify the term imposed on appellants conviction of attempted vehicle theft; modify the awards of credits in both case Nos. 1 and 2; and in all other respects affirm.
DISCUSSION
Staying of Prior Prison Term Enhancements
A prior prison term enhancement must be either imposed or stricken; a sentencing court may not stay an enhancement term. (People v. Jordan (2003) 108 Cal.App.4th 349, 368-369; People v. Jones (1992) 8 Cal.App.4th 756, 758.) Therefore, as appellant contends and the People concede, the trial court erred in staying appellants five prior prison term enhancements.
Appellant argues this error requires remand. The People assert this court should simply strike the prior prison term enhancements. We agree with the People.
We recognize that normally an error of this nature would result in a remand to the trial court for resentencing, i.e., for the trial court to impose the sentence authorized by law. We recognize further that if a trial court elects to strike a prior prison term enhancement it must state its reasons on the record. (People v. Jordan, supra, 108 Cal.App.4th at p. 368.) However, in the instant case, remand would be an idle act. One of the terms of the plea agreement was that appellant be sentenced to no more than four years in prison. To effectuate the trial courts clear intention to impose sentence in accordance with the parties plea agreement, we will order the prior prison term enhancements stricken. (§ 1260 [appellate court "may ... modify a judgment ... as may be just under the circumstances"]; cf. People v. Humphrey (1997) 58 Cal.App.4th 809, 813; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579 [sentencing error did not result in remand because more favorable result was "improbable[,]" and appellate court "unwilling to expend valuable judicial resources by engaging in idle gestures or merely adhering to ritualistic form"].)
Sentence on Attempted Vehicle Theft Conviction
As indicated above, and as the parties agree, the trial court erred in imposing a prison term of two years eight months on appellants conviction of attempted vehicle theft (§ 664; Veh. Code, § 10851).
The trial court stated it chose the midterm. However, the midterm sentence for a violation of Vehicle Code section 10851 is two years, and the sentence for an attempt to commit an offense is one-half the sentence for that offense (§ 664, subd. (a)). Therefore, the correct midterm for attempted vehicle theft is one year. And because appellant had suffered a strike that required that the term be doubled, the correct sentence on appellants conviction of attempted vehicle theft was two years. Accordingly, we will order judgment modified to provide for a two-year term on that conviction and direct the trial court to issue an amended abstract of judgment.
Presentence Custody Credits in Case No. 2
For time in custody prior to sentencing, a criminal defendant may earn credit against his sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). We refer to these forms of presentence credits, collectively, as conduct credits. The People argue that the first degree burglary of which appellant stands convicted in case No. 2 qualified as a violent felony under section 667.5, subdivision (c), and therefore the trial court erred in not limiting appellants conduct credits in that case to 15 percent of the period of confinement as required by section 2933.1(c). We agree.
In awarding appellant in case No. 2 a total 244 days of presentence credits, consisting of 162 days of actual time credits and 82 days of conduct credits, the court utilized the section 4019 credits computation scheme. Under section 4019, a defendant in local custody may earn conduct credits of up to two days for every four days in confinement. (§ 4019, subds. (b), (c) & (f).) However, those who have been convicted of certain violent felonies are subject to a less generous credits computation scheme. Such persons are limited in the amount of conduct credits they can accrue by section 2933.1(c), which provides, in relevant part: "Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county ... or a city jail ... following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a) [of section 2933.1]." Section 2933.1, subdivision (a) refers to "any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5." And one of the felony offenses listed therein is "[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21), italics added.)
Appellant contends the burglary of which he stands convicted did not qualify as a violent felony under section 667.5, subdivision (c)(21) because, although "[he] did admit committing `first degree burglary with a person present on May 27th, [he] did not admit that the person present was someone other than an accomplice."
The factual basis of appellants claim is the following. The information in case No. 2 charges, in relevant part, as follows: "On or about the 27th day of May, 2005, ... the crime of FIRST DEGREE BURGLARY, PERSON PRESENT, in violation of Penal Code section PC459, a FELONY, was committed by JAMES DANIEL CURRY, who did enter an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by GERALDO REYES, with the intent to commit larceny and any felony. [¶] ... [¶] It is further alleged that the above offense is a violent felony within the meaning of Penal Code 667.5(c) in that another person, other than an accomplice, was present in the residence during the commission of the above offense." In open court, the trial court asked appellant, "Mr. Curry, whats your answer to the charge that on May 27th you committed the crime of first degree burglary with a person present?" Appellant responded with a plea of no contest. The trial court did not ask appellant to respond to the special allegation that when he committed that offense "another person, other than an accomplice, was present in the residence ...."
It appears that due process principles form the legal basis of appellants claim. He cites a series of cases, representative of which is People v. Haskin (1992) 4 Cal.App.4th 1434. In that case, the sentencing court imposed a five-year prior serious felony enhancement under section 667, subdivision (a), based on the defendants admission that he had suffered a prior conviction of burglary. However, "A section 667 enhancement requires that the defendant be previously convicted of a `serious felony, and burglary is not deemed a serious felony unless it was of an inhabited dwelling house. ([Former] § 1192.7, subd. (c)(18).) The information alleged only that appellant had been convicted of burglary. It contained no allegation that the burglary was of an inhabited dwelling house or a residence. Furthermore, appellants admission was limited to the `crime of burglary. He did not admit the character of the burglary, and all discussion thereof took place between the court and the prosecutor subsequent to his admission." (People v. Haskin, supra, 4 Cal.App.4th at pp. 1439-1440.) Based on the principles that "[d]ue process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial" (id. at p. 1438), and that the foregoing rule also applies to enhancement allegations, the Haskin court held the sentencing court was "without authority" (id. at p. 1440) to impose a section 667 serious felony enhancement.
At the time relevant in Haskin, section 1192.7, subdivision (c)(18) designated a serious felony the offense of "burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building."
However, we are not limited to the information and appellants plea. A preliminary hearing transcript also "provides notice under California law as to the charges." (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 936.) "[T]he information has a `limited role of informing defendant of the kinds and number of offenses; `the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript, which represents `the touchstone of due process notice to a defendant." (People v. Jones (1990) 51 Cal.3d 294, 312.) The transcript of the preliminary hearing in case No. 2 details the conduct the prosecution contended constituted the burglary with which appellant was charged. Specifically, the prosecution presented evidence appellant entered the home of "Mr. Reyes" and demanded that Reyes give him the keys to Reyess car, and that appellant was unknown to Reyes. Thus, appellant had notice that the prosecution intended to prove the following: Reyes was the victim, not an accomplice, and therefore appellant committed a burglary of a residence at a time when a person who was not an accomplice was present. Putting aside the fact that section 2933.1 is neither a substantive offense nor an enhancement, and assuming that due process principles are, as appellant contends, implicated in the instant case, due process does not require that appellants custody credits in case No. 2 be computed according to section 4019.
Rather, the record demonstrates appellant was convicted in case No. 2 of a violent felony, within the meaning of section 667.5, subdivision (c). Therefore, the trial court erred in not limiting his custody credits in that case to 15 percent of the period of confinement, pursuant to section 2933.1(c). Accordingly, we will modify the judgment to provide that in case No. 2, appellant is awarded 186 days of presentence credits, consisting of 162 days actual time credits and 24 days conduct credits. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered"].)
Presentence Custody Credits in Case No. 1
Appellant contends the trial court erroneously failed to award him presentence credits in case No. 1 for the period from May 27, 2005, through October 5, 2005. We agree.
Except as otherwise indicated, further references to dates of events are to dates in 2005.
Background
In 2003, as a condition of probation in case No. 1, appellant was directed to obey all laws.
Appellant committed the case No. 2 offenses on May 27 and was arrested that day. Both offenses arose out of the same incident. According to the report of the probation officer, appellant walked into the victims residence and demanded the keys to the victims truck. The victim refused, at which point appellant went outside, broke one of the trucks windows and, it appeared, began "messing" with the steering wheel. Appellant was apprehended shortly thereafter.
On October 5, appellant entered his no contest pleas to the case No. 2 offenses and admitted that he violated the obey-all-laws condition of his probation in case No. 1.
Appellant was in custody from May 27 through November 4, the date of sentencing, a total of 162 days.
In case No. 1, appellant was in custody in the Bob Wiley Detention Center (BWDC) from June 17, 2003, through February 11, 2004, a period of 240 days.
In case No. 1, the trial court awarded appellant 271 days of actual time credits consisting of the following: for his custody in BWDC in 2003 and 2004, a total of 240 days, plus 31 days for the period from October 5, the date he admitted his probation violation, through November 4, the date of sentencing. In addition, the court awarded 40 days of conduct credits, for a total of 311 days of presentence credits. The court calculated appellants conduct credits in case No. 1 under section 2933.1(c), which, as discussed below, limits such credits to 15 percent of actual days in custody.
In case No. 2, the trial court awarded appellant 244 days, consisting of 162 days of actual time credits, for the period from May 27, the date of appellants arrest, through November 4, plus 82 days conduct credits.
Analysis
As indicated above, although appellant was arrested May 27, and was in custody from that date through November 4, the date of sentencing, for time in custody in 2005 following appellants arrest the trial court awarded presentence credits in case No. 1 only for time following appellants admission of the probation violation allegation on October 5. The court failed to award credits in that case for the time appellant was in custody in 2005 prior to October 5. Apparently, the trial court concluded, as did the probation officer, that presentence credits did not begin to accrue until appellant admitted the probation violation and probation was formally revoked. However, the conduct upon which appellants probation violation was based, i.e., his commission of the case No. 2 offenses, which violated the obey-all-laws condition of probation, occurred May 27. As appellant argues, under section 2900.5 he was entitled to presentence credits in case No. 1 for time in custody imposed as a result of that conduct. (People v. Buckhalter (2001) 26 Cal.4th 20, 30 [under section 2900.5, "[e]veryone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct" (italics added)].) Therefore, in case No. 1, for time in custody in 2005, appellant was entitled to 162 days of actual time credit (May 27 through November 4), not 29 days (October 5 through November 4) as calculated by the trial court. We will modify the judgment accordingly. (People v. Taylor, supra, 119 Cal.App.4th at p. 647.) This will result in appellant receiving, in case No. 1, 402 days of actual time credits—reflecting the periods from June 17, 2003, through February 11, 2004, and May 27 through November 4—and 60 days of conduct credits (§ 2933.1(c)), for a total of 462 days of presentence credits.
Imposition of Upper Term in Case No. 1
We note that (1) in case No. 1 the trial court imposed an upper term sentence, and (2) after briefing was completed in the instant case, in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham) the United States Supreme Court held that Californias determinate sentencing law "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments" to the extent the law allows a judge to impose an upper term sentence "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant."
We express no opinion as to whether the imposition of the upper term in case No. 1 ran afoul of Cunningham. Appellant entered his plea in case No. 2 and his admission of violating probation in case No. 1 pursuant to a negotiated plea, one of the terms of which was a four-year sentencing lid, and the trial court denied appellants request for a certificate of probable cause (§ 1237.5). Under these circumstances, any claim that the trial court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstances would not be cognizable on appeal. (People v. Shelton (2006) 37 Cal.4th 759, 766 ["`[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause"]; People v. Bobbit (2006) 138 Cal.App.4th 445, 447 [where a sentencing lid is specified as part of a negotiated plea agreement and defendant is sentenced to the maximum term permitted under the agreement, an appellate challenge to the trial courts authority to impose an upper term sentence based on the absence of a jury finding on one or more aggravating circumstances requires a certificate of probable cause].)
DISPOSITION
The judgment is modified as follows: The five prior prison term enhancements that the trial court stayed are instead stricken; the sentence imposed on appellants conviction of attempted vehicle theft in case No. VCF146467 is two years; in case No. VCF146467 appellant is awarded 186 days of presentence credits, consisting of 162 days actual time credits and 24 days conduct credits; and in case No. VCF111434, appellant is awarded 462 days of presentence credits, consisting of 402 days actual time credits and 60 days conduct credits. The trial court is directed to issue an amended abstract of judgment reflecting these modifications and forward a copy of the amended abstract to the Director of Corrections. As modified, the judgment is affirmed.