Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS081843
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The jury having convicted defendant Juan Roberto Ramos of committing various sex crimes against a seven-year-old female, he contends on appeal that his convictions were based on hearsay statements by the victim improperly admitted at trial as prior inconsistent statements. He also claims that he is due additional conduct credits. For the reasons stated below, we will order that defendant receive two more days of conduct credits, and will affirm the judgment as modified.
STATEMENT OF THE CASE
I. Convictions And Sentence
After trial, a jury convicted defendant of committing four crimes on June 27, 2008, against the victim “C.”, all at her residence: having sexual intercourse with her (count 2: Pen. Code § 288.7, subd. (a)); pulling down her pants and putting her on top of him (count 3: § 288, subd. (a)); orally copulating her (count 7: § 288.7, subd. (b)); and kissing her buttocks (count 11: § 288, subd. (a)). The jury acquitted defendant of four other sex crimes against the same victim, alleged to have occurred before June 27, 2008: sexual intercourse (count 1) and oral copulation (count 6) at her residence between June 1 and June 26, 2008; and two counts (8 and 9) of oral copulation between June 1, 2007 and May 30, 2008 at her prior residence.
Unspecified section references are to the Penal Code.
After the People rested and defendant moved for acquittal, the People moved for dismissal of five other counts: two counts of sexual intercourse (4 and 5) and two counts of lewd touching (12 and 13) at her prior residence between June 1, 2007 and May 30, 2008, and one count of lewd touching (count 10) at her latest residence between June 1 and 26, 2008.
The trial court sentenced defendant to an indeterminate term of 48 years to life in prison, and awarded defendant 607 days of actual custody credit and 72 days of conduct credit as calculated in the probation report.
II. Trial Evidence
In reviewing the evidence at trial, we will focus on C.’s statements at trial and before trial as to each charge of which defendant was convicted. C. was nine years old at the time of trial, and testified through a Spanish interpreter.
According to C.’s mother, for about a month and a half in the spring of 2007, C.’s family lived with her uncle, in whose home defendant also resided. Then C.’s family moved to their latest residence where they resided from approximately June 2007 to May 2008, and later moved to a residence in approximately June 2008. At the latest residence, C. and her parents shared one room, while her adult sister, F., and her family shared another room.
C. testified twice. After her initial testimony on January 12, 2010, the People called Salinas Police Detective Luis Bravo, but the trial court limited his testimony, ruling in the absence of the jury that his description of some of C.’s interview statements was not specifically inconsistent with her trial testimony. Accordingly, the People recalled C. on January 15, 2010, to lay further foundation for Detective Bravo’s testimony. The recall testimony by both C. and Detective Bravo focused on what she had told him about defendant molesting her on occasions prior to June 27, 2008 (crimes of which defendant was ultimately acquitted).
A. count 3 (removing victim’s pants and placing her on defendant)
C.’s mother testified that, on June 27, 2008, F. watched C. and her own baby while C.’s mother worked; defendant called her at work to find out when she was getting out; he said he was at her residence and would wait for her there, but he was not there when she arrived home around 2:30 p.m.
C. testified that defendant used to rent a room from her uncle; one day when her parents were at work and her sister F. was home, defendant came to visit; he came into her room when she on her bed watching TV; he closed the door and the curtains and sat on the carpet; defendant grabbed C. around the waist and pulled her down to him; he pulled his pants and underwear half-way down his thigh; he also pulled her pants and underwear partly down and placed her on top of his legs; her back was towards his chest.
According to C.’s mother, the following day, June 28, 2008, C. complained of pain in her vagina. C. told her mother that it hurt because defendant had removed his pants and sat her down on him the day before. C.’s mother called the police.
On June 28, 2008, Salinas Police Officer Raul Rosales visited the family at their residence. He testified that he asked C. if an adult had touched her sexually. Among other things, she told him that, the day before, defendant had removed her pants and his and touched her vagina and buttocks.
On July 7, 2008, Detective Bravo conducted a forensic interview with C. He testified that, among other things, C. told him that defendant had come into her bedroom, closed the door, and removed her pants and underwear.
On July 9, 2008, Valerie Barnes, M.D., examined C. for signs of sexual assault after taking an oral history from her. She testified that C. told her that defendant, a family friend, came to the house, removed her pants, and grabbed her around the waist.
B. counts 11 (kissing victim’s buttocks) and 7 (oral copulation)
At trial, C. did not testify that defendant kissed her buttocks or orally copulated her. During her initial testimony, she said that defendant’s mouth touched her mouth and nowhere else. When asked if his mouth ever touched her anywhere else, she indicated her right thigh, but nowhere else, and that it happened one time.
Officer Rosales testified that, on June 28, 2008, during his preliminary interview with C., she told him, among other things, that defendant had kissed her buttocks and vagina after removing her pants. She did not use those words, but pointed to where he kissed her.
Detective Bravo testified that, on July 7, 2008, during his forensic interview with C., she told him, among other things, that defendant had kissed her on the lips and buttocks, and had kissed her vagina underneath her clothes. She pointed out those parts on a diagram.
C. count 2 (sexual intercourse)
At trial, C. did not testify that defendant had sexual intercourse with her. During her initial testimony, she testified that, after defendant placed her on his legs, he grabbed her and moved her up and down until some white thing came out from his male part; he wiped most of it up with toilet paper; his male part touched her “ ‘in the back’ ” where she goes poop; it almost went inside her and it hurt; she bled and cleaned up the blood with paper; that happened one time.
Then the People called C.’s mother to testify that C. had told her on June 28, 2008, that her vagina hurt because defendant had penetrated her with his penis. In the absence of the jury, the court overruled defendant’s objection, stating “It does appear to be an inconsistent statement.”
Officer Rosales testified that, on June 28, 2008, during his preliminary interview with C., she told him that defendant had touched her vagina and buttocks with his “ ‘man thing, ’ ” and had put his penis inside her vagina.
Detective Bravo testified that, on July 7, 2008, during his forensic interview with C., she told him that defendant put his thing, pointing to a drawing of a penis, inside her thing, pointing to a drawing of a vagina, and some white stuff came out; she cleaned herself with a paper; it hurt when she urinated and it made her bleed.
Doctor Barnes testified that, on July 9, 2008, C. told her that defendant made her touch his man thing; it was hard; he put it in her genital area (indicating by pointing) and it hurt her. Doctor Barnes also testified that during her July 9 examination of C., Barnes noticed an abnormal amount of redness in her genital area; her hymen was thicker than usual, which could result from repeated penetration.
A criminalist testified that forensic examinations of C.’s clothing and the piece of paper she used to clean herself revealed traces of her blood and DNA, but nothing from defendant.
On June 28, 2008, Officer Rosales interviewed defendant several times. Rosales testified that he first saw defendant approaching C.’s residence on a bicycle while he was interviewing C.; Rosales told defendant that he was investigating a child being inappropriately touched; defendant sighed and asked, “ ‘which one?’ ”; he did not ask defendant to explain this comment; defendant identified himself as a family friend who had visited the day before when C., her older sister, another female child, and a baby were present; defendant agreed to accompany Rosales to the police station.
Rosales further testified that at the police station, he asked defendant what had happened the day before; defendant first said that nothing had happened except for C. hugging him; defendant denied being alone with her and pulling her pants down; he said that she always kissed him; when Rosales told him what C. had said he did, defendant mumbled, looked down, and covered his face with his hand; Rosales asked him again what had happened, and defendant said, “ ‘well, if you say those are your conclusions, that’s what happened’ ”; defendant said that she kissed his face and mouth, which aroused him and gave him an erection; defendant also said that because he has a problem containing himself, he ejaculated.
According to Rosales’s testimony, their interview resumed later that day after defendant was medically examined; defendant said he thought C. was about 10 years old; defendant also said that they were watching cartoons when she hugged and kissed him, and he thought she had sexual intentions.
When C. was recalled to testify, she testified that she had told her mother the truth in saying that defendant’s part had gone inside her part. C. did not know the names of the parts, but she circled the penetrated part on an exhibit.
III. Evidentiary Rulings In Jury’s Absence
Three times during trial, the court ruled in the jury’s absence on defendant’s hearsay objections to other witnesses describing C.’s pretrial statements.
The first and second rulings have already been mentioned. On the first day of testimony after C.’s initial testimony and before her mother testified, the court overruled defendant’s objection and allowed mother’s hearsay testimony as an inconsistent statement of C. On the second day of testimony, the court precluded Detective Bravo from reciting some interview statements by C. because her testimony was “not specific enough to get into detailed statements made during the course of an interview that are inconsistent with sort of a general denial that it ever happened.” Nor did the testimony qualify as past recollection recorded.
The third ruling came on the fourth day of testimony, after C. testified again on recall and the People asked to recall Detective Bravo. Defendant objected that the prior statements were not inconsistent. The court stated: “All right. The Court—first of all, as far as the earlier question, there are two levels to this. The first one is the Court makes a preliminary finding as to whether or not a reasonable juror could reach a conclusion that the witness is being evasive or not being candid about what she does or doesn’t remember. This is one of those cases where the Court finds that the jury could come to that conclusion just based on what she’s said on the witness stand. More than that though, it’s not as if the earlier part is how some cases come up where the witness gets up on the stand and says ‘I don’t remember, ’ ‘I don’t remember, ’ ‘I don’t remember, ’ and if that’s all they say, then it’s not inconsistent. I absolutely agree with that, if, in fact, there isn’t way to interpret their testimony as being evasive or disingenuous. Here, we don’t have that. We actually do have the witness testifying it didn’t happen, there was no other sexual intercourse, there wasn’t any other penetration, it didn’t happen anywhere. It’s not that ‘I don’t remember, ’ it’s that it didn’t happen, and that is inconsistent, I assume, with the counts that are in the information.”
The court said that it would look at the question, but it is inconsistent for a witness to say at trial that something did not happen after saying that it did, while it would not be inconsistent if the witness claimed not to remember “and there isn’t any way to conclude from the information that’s provided that the witness is being evasive or disingenuous.” Defense counsel asked if the court was finding the witness to be disingenuous or evasive. The court replied, “I believe that the foundation is laid so that the trier of fact can reach that conclusion, the jury.”
“I’m not quite sure, I’ll also look that up, that I need to actually make a finding that the witness is being evasive before it can go to a jury. If that’s the case, the Court does, based on her tentativeness every time a question was asked about something related to this event, inappropriate touchings and that sort of thing, that she has a very difficult time talking about it and that it’s likely she is minimizing, and I think she comes across that way.”
After a lunch break, the court explained that for C. to have told a police officer that she had been penetrated on five occasions was inconsistent with her testimony that it happened one time and that there were other areas of potential inconsistencies.
The People rested on the fourth day of testimony. After the court ruled on defendant’s motion for acquittal and the People’s motion to amend to conform to proof, the court made the following statements regarding defendant’s repeated objections to leading questions and inconsistent statements: “this little girl was very immature for a nine-year-old, I thought, at least the way she appeared on the stand. I think she was overwhelmed, she appeared to be overwhelmed, spoke in a voice that you could barely hear and sometimes I didn’t hear, although the interpreter obviously picked it up sitting right next to her. Very, very soft-spoken. And because of her age and her maturity the Court felt that leading questions of the nature asked were appropriate. Then the other question about hearsay, the record should be clear, and I’ve mentioned it at sidebar, this isn’t a situation where the Court feels that this witness is lying about—you know, with no motive or something like that about her memory or her ability to detail things or the accuracy of what she testified to. The Court’s read of this witness was simply that she was having a very difficult time talking about this, in this setting, and that she tended to do her best to minimize what she was able to remember at that very moment when the question was being asked and answered. I see her as a—a little girl who was having difficulty being candid. And it obviously ultimately is left to the jury to make the determination pursuant to the instruction as to whether or not she was somehow being evasive or not candid, but the Court’s preliminary finding is that that’s the case.”
DISCUSSION
I. The Victim’s Hearsay Statements Were Admissible As Prior Inconsistent Statements.
We review rulings on the admissibility of evidence for an abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 462.) A trial court is not required to expressly find inconsistency or evasiveness before overruling a hearsay objection; on appeal we will infer from the ruling that the trial court made the necessary implied factual findings. (People v. Ledesma (2006) 39 Cal.4th 641, 710.)
Defendant contends that, since “the trial court ultimately found that C. was not lying and was not being evasive in any ordinary sense, ” her prior statements were inadmissible hearsay. Defendant’s argument assumes, incorrectly, that lying or evasiveness is required to render a prior statement admissible.
However, defendant’s view of the foundation necessary to render a prior statement admissible is unduly narrow. The law looks instead at inconsistency in effect. In some cases, a witness’s self-proclaimed forgetfulness may be interpreted as a repudiation or implied denial of a prior positive declaration. “The ‘fundamental requirement’ of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.) However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.’ (Ibid.) When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper. (People v. O’Quinn (1980) 109 Cal.App.3d 219, 225.)” (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
“Normally, the question of evasiveness arises when a witness claims memory loss about the subject of the questioning. (E.g., People v. Ervin (2000) 22 Cal.4th 48, 84-85; People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220; People v. Green, supra, 3 Cal.3d at pp. 988-989.) Answering questions in a deliberately nonresponsive manner, however, also can rise to the level of evasion.” (People v. Cowan, supra, 50 Cal.4th at p. 463.)
Although in her recall testimony about what happened before June 27, 2008, C. claimed not to remember some things, in her descriptions of what happened on June 27, 2008, she did not claim to have any difficulty remembering what had happened. She directly testified that defendant had pulled down her pants and underwear and his own, placed her on him without kissing her anywhere but her mouth and her right thigh, and moved her up and down, with his penis almost going inside her anus, until he ejaculated. This testimony supported the charge of removing her clothes and putting her on him (count 3), but otherwise contradicted the charges based on her prior extrajudicial statements that he had kissed her buttocks (count 11) and vagina (count 7) and had penetrated her vagina with his penis (count 2). She expressly denied that he had kissed her anywhere else.
The trial court noted that during this recall testimony, C. was typically silent for five to ten seconds before answering a question. When recalled, C. testified that she could not remember if defendant had visited her prior residence or done anything she did not like in that house; she did not remember talking to a policeman about what happened in that house; at her latest residence, defendant did something she did not like on one day only; he did not kiss her body any other time; she could not remember if he made her touch him; he had tried to pull her pants down on five other occasions, but she could not remember how far her clothes moved.
As the trial court stated on the fourth day of trial in describing C.’s testimony about the events of June 27, 2008, this was not a witness who claimed a lapse of memory. “We actually do have the witness testifying it didn’t happen, there was no other sexual intercourse, there wasn’t any other penetration, it didn’t happen anywhere. It’s not that ‘I don’t remember, ’ it’s that it didn’t happen, and that is inconsistent, I assume, with the 13 counts that are in the information.” This observation also accurately describes C.’s testimony on the first day of trial, when the court observed that the mother’s version appeared to be inconsistent with C.’s testimony.
C.’s trial testimony as to the events of June 27, 2008, amounted to express and implicit denials of much of what she had told her mother, two police officers, and a doctor. Under these circumstances, we conclude that the trial court did not abuse its discretion in allowing those witnesses to relate her prior inconsistent statements describing what crimes defendant had perpetrated. (People v. Burciago (1978) 81 Cal.App.3d 151, 165-166.)
In light of this conclusion, we need not and do not consider the Attorney General’s arguments that C.’s statements were admissible as contemporaneous descriptions of her physical state (Evid. Code, § 1250), spontaneous declarations (Evid. Code, § 1240), a fresh complaint, or statements by a victim of child abuse (Evid. Code, §§ 1253, 1360).
II. Defendant Is Entitled To Additional Conduct Credit.
On appeal defendant contends that he is entitled to conduct credits for 17 or at least 15 more days in custody. Defendant questions the calculation by the probation department, adopted by the sentencing court, that, of his 607 total days in presentence custody, he is not entitled to conduct credits for any of the 121 days that he spent in Atascadero State Hospital in connection with the investigation of his mental competency to stand trial. While section 2900.5 authorizes awarding a criminal defendant presentence credits for every day spent in actual custody, a defendant is not entitled to earn extra presentence conduct credits for either performing labor or complying with institutional rules while receiving treatment in a hospital. (People v. Sage (1980) 26 Cal.3d 498, 502-503; In re Huffman (1986) 42 Cal.3d 552, 563.)
Defendant does not specify the number of days of credit he is seeking, but our calculation applying a 15 percent credit limit indicates the argument concerns two days. Section 2933.1 limits conduct credit to 15 percent of actual time in confinement for persons convicted of violent felonies. Oral copulation of a person under 14 years of age by a person more than 10 years older and lewd acts on a person under 14 are considered violent felonies. (§ 667.5, subd. (c)(5), (6).)
The probation report calculated that defendant spent 607 total days in custody, spending June 28, 2008 through June 9, 2009, and October 9, 2009 through February 24, 2010 in the Monterey County Jail, and June 10 through October 8, 2009 (121 days) in Atascadero State Hospital. The report also calculated that he was entitled to 72 days of good conduct credit pursuant to sections 2933.1 and 4019. The probation report exempted 121 days attributed to Atascadero State Hospital from the section 4019 credit calculation, noting that conduct credits are not available for time spent in a state hospital pursuant to a determination of incompetency.
A. defendant has not forfeited his claim.
The Attorney General contends that defendant is procedurally barred from asking for extra conduct credit by failing to object to the award in the trial court. In addition to general forfeiture principles, he cites section 1237.1. “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.”
Section 1237.1 has been determined to be inapplicable to a situation, like this one, where the appellant has raised an issue other than a custody credit error. (People v. Acosta (1996) 48 Cal.App.4th 411, 420-427; People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Jones (2000) 82 Cal.App.4th 485, 493; People v. Donan (2004) 117 Cal.App.4th 784, 792-793.) The Attorney General argues that Acosta was wrongly decided without discussing the judicial economy analysis that motivated that decision.
We recognize that People v. Guillen (1994) 25 Cal.App.4th 756 (Guillen) predated enactment of section 1237.1, but it articulated reasons for not applying the case law that section 1237.1 later codified. “We are aware of recent decisions indicating that such correction should be sought from the trial court in the first instance, with resort to the Courts of Appeal only on a showing that relief is not available or is refused at the trial court level. (People v. Fares (1993) 16 Cal.App.4th 954; People v. Little (1993) 19 Cal.App.4th 449, 451.) We agree that when the question presented involves a fact determination or an exercise of discretion, the issue should be tendered first to the trial court. Arguably, the same is true when the claim of error in calculation is the only issue in the case. But when the sentence issue presented is essentially arithmetic in nature, involving no factual assessment or exercise of discretion and, in fact, will take no more than a few minutes of appellate time, it is far more economical to resolve it through the appellate process than to require the institution of a trial court proceeding. This is especially true when it is one of a number of issues raised on appeal.” (Guillen, supra, at p. 764.)
Errors in computing custody credits involving undisputed facts have been regarded as unauthorized sentences that can be corrected at any time, including on appeal. (Guillen, supra, 25 Cal.App.4th at p. 764; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1411; People v. Duran, supra, 67 Cal.App.4th 267, 270; People v. Taylor (2004) 119 Cal.App.4th 628, 647.) As we will explain, defendant’s claim does not depend, as the Attorney General claims, on a series of unresolved factual determinations. It arises from the undisputed record of the competency proceedings in this case.
B. the competency proceedings
On March 12, 2009, the criminal proceedings were suspended in order to ascertain defendant’s mental competence. (§ 1368.) After receiving a psychiatrist’s report, the trial court on April 1, 2009, found defendant not competent to stand trial and referred defendant for evaluation. After receiving a report from the Harper Medical Group, the court on April 22, 2009, again pronounced defendant incompetent to stand trial and ordered the sheriff to deliver defendant into the custody of the Director of the State Hospital at Atascadero for care and treatment. The minute order of April 22 states in part, “Upon filing of a certificate of restoration of competence, the defendant be returned to Court under PC 1372.”
After review hearings on May 13 and 27, June 12, and September 11 and 25, 2009, defendant was determined to remain incompetent and ordered to be housed at Atascadero. Defendant did not appear for the review hearing on June 12, 2009. The minute order of that date reflects that he was released to Atascadero State Hospital on June 9, 2009.
A certification of mental competency by Medical Director Robert Knapp, dated September 24, 2009, was stamped received and filed by the Monterey County Superior Court on October 16, 2009. Accompanying the certification is a 13-page report recommending defendant’s return to the court as competent to stand trial. The report bears a typed date of “9/22/2009” and a signature by Gayle Gaines, M.D., dated October 6, 2009.
An out-of-court entry by the clerk on October 19, 2009, reflected that the certification was received and filed on October 16; that a hearing was scheduled for October 23, 2009; and that defendant was currently in custody at the Monterey County Jail.
At a hearing on October 23, 2009, the section 1372 report was received. At defendant’s request, the court ordered a supplemental psychiatric report and criminal proceedings remained suspended. After a psychiatrist’s report was received, the trial court on November 10, 2009, found defendant competent to stand trial and reinstated criminal proceedings.
C. calculating defendant’s custody CREDITS
We do not understand defendant to dispute that he was actually returned to Monterey County Jail on October 9, 2009. However, he argues essentially that he should have started earning custody credits sooner, from September 24, 2009, the date he was certified by the medical director of Atascadero to be competent, if not from September 22, 2009, the date of the staff report supporting this certification.
Defendant relies on People v. Bryant (2009) 174 Cal.App.4th 175 (Bryant). In that case, on May 21, 2007, two psychiatrists, a psychologist, and a program assistant from Patton State Hospital all signed a report declaring a defendant to be competent to stand trial. However, it was not until July 27, 2007, that the designee of the hospital’s medical director certified the defendant’s competence. (Id. at p. 177.)
On appeal the defendant argued that he was entitled to earn conduct credits from May 21, 2007. The appellate court quoted and relied on footnote 6 in People v. Buckhalter (2001) 26 Cal.4th 20 at page 30. “Section 4019 provides that its formula for good behavior credit applies to persons detained, prior to felony sentencing, in specifically enumerated local facilities, including ‘county jail[s], industrial farm[s], or road camp[s] or... city jail[s], industrial farm[s], or road camp[s].’ (Id., subd. (a)(4), italics added.) The statute does not apply to presentence time spent receiving treatment ‘in [such] nonpenal institutions... as state hospitals.’ (People v. Sage (1980) 26 Cal.3d 498, 502-503 (Sage)). However, it has been held that equal protection requires application of section 4019 credits to presentence confinement in a state facility if the circumstances of the confinement are essentially penal. (See People v. Guzman (1995) 40 Cal.App.4th 691, 693-695[(Guzman)] [person diverted, prior to sentencing, for treatment at California Rehabilitation Center (CRC), but later excluded from CRC as unsuitable, is entitled to § 4019 credits while thereafter still confined at CRC pending sentencing]; see also People v. Nubla (1999) 74 Cal.App.4th 719, 731 [(Nubla).]” (Bryant, supra, 174 Cal.App.4th at pp. 182-183.)
Bryant also reviewed the holdings of Guzman and Nubla, which followed Guzman (Bryant, supra, 174 Cal.App.4th at pp. 183-184) and reached the following conclusion. “Section 1372, subdivision (a)(1) expressly requires that, once the accused has regained competency, the medical director of the state hospital or a designee to ‘immediately certify that fact’ by filing a certificate of restoration with the committing court. [Citation.] As in the case of a California Rehabilitation Center committed person who is not returned to local custody, equal protection principles warrant defendant be given conduct credits that would have been earned had he been returned the county jail if a timely restoration certificate had been issued.
“We recognize there may be a circumstance where the delay in the issuance of the section 1372, subdivision (a)(1) certification is such that award of conduct credits for time spent in the state hospital is unwarranted. There may be a scenario where there is a disagreement between the medical director or the designee, on one hand, and staff, on the other hand, concerning a patient’s competence. Or there may be other circumstances which would support the denial of conduct credits. But there is no evidence of such in this case. There is no evidence of incompetency between May 21, 2007, and July 27, 2007. Finally, our opinion should not be read as a holding that the very instant competency is restored, the right to conduct credits accrues. The Legislature has provided for an orderly process in sections 1371 and 1372 for evaluating patients and returning them to court when their competence is regained. But when the uncontradicted evidence demonstrates the accused’s competency was unquestionably regained as of a date certain, as occurred here on May 21, 2007, the defendant is entitled to section 4019 conduct credits even though the section 1372, subdivision (a)(1) certification has not been mailed to the trial court.” (Bryant, supra, 174 Cal.App.4th at p. 184.)
In this case, there was no disagreement between the medical director and staff as to defendant’s competence, nor is there any proof of incompetence after September 24, 2009. That defendant questioned his own competence by requesting and obtaining a supplemental psychiatric report is no reason to disagree with the September 24, 2009 certification of his return to competence. Despite the Attorney General’s insistence that there is an issue of fact, there is no reason to question that the certification was signed on the date it bears, as part of the “orderly process” contemplated in Bryant. Defendant was returned to jail custody by October 9, 2009, 15 days after the certification, when the statute requires a defendant to be returned to the committing court within 10 days. (§ 1372, subd. (a)(3)(C).) We conclude that defendant is entitled to two additional days of conduct credit.
Disposition
The award of 72 days of conduct credit is stricken, and shall be replaced by an award of 74 days of conduct credit. As so modified, the judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, aCTING P.J.MIHARA, J.