Opinion
A155748
11-04-2019
THE PEOPLE, Plaintiff and Respondent, v. MARCUS MONTGOMERY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H29770)
Defendant Marcus Montgomery appeals from the denial of his motion to correct the record under Penal Code section 1237.1. He asserts he was denied his right to counsel and right to be present at the hearing on the motion, and that the trial court erred in denying his motion to restore his custody and conduct credits. We conclude defendant had no right to counsel or to be present at the hearing on his motion. The Attorney General concedes, however, and we conclude, that the court erred in not granting the motion to amend the abstract of judgment to reflect 803 days of actual custody credits. We therefore order the trial court to correct the abstract of judgment, but otherwise affirm the challenged ruling.
BACKGROUND
Defendant was convicted by plea of first degree murder in 2001, and sentenced to 25 years to life. The trial court gave defendant credit for 803 days of custody credit and 120 days of conduct credit. There is no indication in the record that defendant filed an appeal.
In 2002, the Department of Corrections sent the trial court a letter indicating local conduct credit was inappropriate under Penal Code section 2933.2. The court issued an amended abstract of judgment, which reflected no credits, either custody or conduct.
In 2018, defendant filed a motion for correction of the record under Penal Code section 1237.1, seeking restoration of his previously awarded custody and conduct credits. Following a hearing at which the Alameda County District Attorney appeared but defendant did not, the court denied the motion.
DISCUSSION
Right to Counsel and to Attend the Hearing
Defendant asserts he was denied the right to counsel and the right to be present at the hearing on his motion for correction of the record.
"[A] criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review." (Coleman v. Thompson (1991) 501 U.S. 722, 756.) "We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions. . . . Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further." (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; see People v. Martinez (2016) 246 Cal.App.4th 1226, 1234.)
" ' "A criminal defendant's right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution. . . . [Citations.] A defendant, however, 'does not have a right to be present at every hearing held in the course of a trial.' [Citation.] A defendant's presence is required if it 'bears a reasonable and substantial relation to his full opportunity to defend against the charges.' [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendant's right to a fair and impartial trial. [Citation.]" [Citations.]' The same analysis applies under article I, section 15 of the California Constitution. [Citations.] 'The standard under sections 977 and 1043 is similar. " '[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him. . . .' " ' " (People v. Virgil (2011) 51 Cal.4th 1210, 1234-1235.)
The court in People v. Shabazz (1985) 175 Cal.App.3d 468 addressed a similar situation. There, the court granted defendant custody credits at the time of sentencing, but subsequently amended the judgment to delete the credits. (Id. at p. 470.) The defendant moved to vacate the order deleting the credits, and appealed from the trial court's denial of his motion. (Ibid.) On appeal, the defendant asserted the court had violated his due process rights by amending the judgment without holding a hearing at which he could be present and represented by counsel. (Id. at p. 474.) The court rejected that claim, noting "the pertinent facts had been found at the time of the original sentencing when appellant had a hearing and was represented by counsel. When the court's error of law was drawn to its attention by the subsequent letter from the Department of Corrections, the court had no choice but to correct the sentence. . . ." (Ibid.) The appellate court concluded "appellant's due process rights are fully protected by the instant opportunity for appellate review of the trial court's action." (Ibid.)
We likewise conclude defendant's due process rights were not violated.
Custody Credit
Defendant asserts, and the Attorney General concedes, that he is entitled to 803 days of actual custody credit. Penal Code section 2900.5 provided, at the time of defendant's offense, that "In all felony . . . convictions . . . when the defendant has been in custody, including . . . any time spent in a jail . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment." (Pen. Code, § 2900.5, subd. (a).)
" 'A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.' " (People v. Cardenas (2015) 239 Cal.App.4th 220, 235.)
Accordingly, we order the abstract of judgment corrected to reflect defendant's 803 days of actual custody credit.
Conduct Credit
Defendant also asserts he was entitled to 120 days of conduct credit under Penal Code section 2933.2. He claims Penal Code section 2933.2, which prohibits an award of conduct credits to a defendant convicted of murder, does not apply to him because he was not yet convicted of murder during the time of his preconviction custody.
That claim is belied by the plain language of the statute. Penal Code section 2933.2 provides in relevant part: "(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933 or Section 2933.05. . . . [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a)." (Pen. Code, § 2933.2, subds. (a), (c).)
Defendant appears to conflate accrual of days of custody with an award of conduct credits. Although he accumulated days in custody prior to his conviction, conduct credits are awarded only after conviction. (Pen. Code, § 2933.2, subds. (a), (c).)
"Subdivision (a) of section 2933.2 prohibits any person convicted of murder from accruing any presentence conduct or worktime credit." (People v. Chism (2014) 58 Cal.4th 1266, 1336.) "Section 2933.2, subdivision (c) is clear—no murderer, even one receiving an extremely unlikely grant of probation, would ever be entitled to presentence conduct credits." (In re Carr (1998) 65 Cal.App.4th 1525, 1532, fn. 2.) "[T]he language of section 2933.2, subdivision (c) is broad and evidences an intention to impose a complete ban on presentence conduct credits for those defendants who come within its purview. Subdivision (c) states that, notwithstanding section 4019 'or any other provision of law,' no presentence conduct credits may be earned by a person convicted of murder. That language reflects an intent to supersede any and all provisions of law that might support an award of presentence conduct credits." (People v. McNamee (2002) 96 Cal.App.4th 66, 70.)
Defendant acknowledges these cases, but asserts the quoted statements are dicta, relying on People v. Moon (2011) 193 Cal.App.4th 1246. Moon, quoting Carr, stated: "The [Carr] court expressed the view, albeit in dictum, that the language of [Penal Code] section 2933.2, subdivision (c), 'is clear—no murderer, even one receiving an extremely unlikely grant of probation, would ever be entitled to presentence conduct credits.' " (Id. at p. 1253.) The court in Moon nevertheless went on to "agree with the dictum in Carr," and adopted its reasoning. "The language of [Penal Code] section 2933.2, subdivision (c) is clear and prohibits the award of conduct credits to those convicted of murder, even when granted probation." (Ibid.) Subsequent cases have agreed that a defendant convicted of murder pursuant to Penal Code section 187 is not entitled to presentence conduct credits. (See, e.g., People v. Calles (2012) 209 Cal.App.4th 1200, 1226.)
DISPOSITION
The order denying defendant's motion is reversed as to the custody credit determination but otherwise affirmed. The trial court is directed to prepare a new abstract of judgment awarding defendant 803 days custody credit and no days of conduct credit, and to forward a copy of the new abstract of judgment to the Department of Corrections.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.