Opinion
F073187
10-17-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND WOODWARD, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF240656B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. H. N. Papadakis, Judge. (Retired judge of the Fresno County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J., and Meehan, J.
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Appellant Raymond Woodward pled no contest pursuant to a negotiated plea to first degree murder (Pen. Code, § 187, subd. (a) /count 1), second degree robbery (§ 211/count 2), and admitted a personal use of firearm enhancement (§ 12022.5, subd. (a)) in count 1.
All statutory references are to the Penal Code.
On January 14, 2016, the court sentenced Woodward, pursuant to his negotiated plea, to an aggregate term of 40 years to life, consisting of a determinate aggravated term of five years on his robbery conviction, an indeterminate term of 25 years to life on his murder conviction and a 10-year arming enhancement on that conviction. The court also awarded Woodward 1,982 days of presentence actual custody credit for the time he spent in custody from August 12, 2010, the date of his arrest, through January 14, 2016. On January 21, 2016, the court awarded Woodward an additional seven days of presentence actual custody credit for a total of 1,989 days. The court also awarded Woodward 298 days of presentence conduct credit.
On July 8, 2016, Woodward's appellate attorney filed a brief asking this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On May 18, 2017, we sent a letter to the parties informing them that they could file a letter brief addressing whether the court imposed an unauthorized sentence when it awarded Woodward seven additional days of presentence actual custody credit and/or 298 days of presentence conduct credit.
On June 5, 2017, respondent filed a letter brief contending that the award of 298 days of presentence conduct credit and an additional seven days of presentence actual custody credit on January 21, 2016, was unauthorized.
Following independent review of the record and having considered respondent's letter brief, we agree with respondent. Accordingly, we modify the judgment and affirm it as modified.
FACTUAL AND PROCEDURAL HISTORY
On April 4, 2009, Woodward was armed with a .22-caliber handgun when he entered a Super Stop convenience store south of Kingsburg, California. Woodward approached the clerk and demanded money. The clerk opened the cash register for Woodward and gave him about $60. Woodward grabbed some cigars and a bottle of liquor and began walking out of the store. However, when he was at the threshold of the entrance door, he turned around and fired a single shot at the clerk, striking him in the upper left chest and fatally wounding him. Woodward ran and got into a car driven by Abraham Del Toro who drove them away.
On July 21, 2010, a confidential informant identified Woodward as the shooter during the robbery and Del Toro as the driver of the getaway car. According to the informant, on the night of the robbery, he overheard the two men arguing. Several days later, Del Toro told the informant that he and Woodward committed the robbery. The informant also heard a telephone conversation between Del Toro and his father during which Del Toro described details of the robbery while begging his father not to turn him in.
On August 11, 2010, Woodward and Del Toro were arrested. Although he was initially hesitant to provide a statement, eventually Woodward confessed that he shot the clerk with a .22-caliber handgun provided by Del Toro and that Del Toro drove the getaway car. According to Woodward, Del Toro wanted to rob that particular store a week earlier because they kept a "box of money" behind the counter. Woodward was very remorseful and wrote a letter confessing to the crime and requesting forgiveness.
On October 24, 2011, the Tulare County District Attorney filed an information charging Woodward and Del Toro with one count each of murder and robbery and firearm enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d) in each count. The murder charge also alleged as a special circumstance against both defendants that the murder occurred during the course of a robbery (§ 190.2, subd. (a)(17)).
On January 25, 2012, the court granted Woodward's motion to sever his case from Del Toro's case.
On May 20, 2015, pursuant to a negotiated plea, Woodward pled no contest to first degree murder and second degree robbery and he admitted a personal use of a firearm enhancement (§ 12022.5, subd. (a)) with respect to the murder count. Woodward also waived application of section 654 to the robbery charge. The plea agreement also provided for a stipulated, indeterminate term of 40 years to life and the dismissal of the remaining allegations.
On January 14, 2016, the court sentenced Woodward, pursuant to his negotiated plea, to an aggregate term of 40 years to life. As noted earlier, the court also awarded Woodward 1,982 days of presentence actual custody credit and no presentence conduct credit against the aggregate term it imposed.
However, on January 21, 2016, the court modified Woodward's award of presentence actual custody credit by adding seven days for a total of 1,989 days of presentence actual custody credit. It also awarded Woodward 298 days of presentence conduct credit.
Woodward's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Woodward has not responded to this court's invitation to submit additional briefing. However, as noted above, we allowed the parties to brief whether the court imposed an unauthorized sentence through its award of presentence custody credit on January 21, 2016. The Court's Modified Award of Presentence Custody
Credit on January 21 , 2016 , Was Unauthorized
A defendant is entitled to credit for all time he spent in presentence custody against the sentence imposed. (§ 2900.5, subd. (a).) Most defendants also earn presentence conduct credit. (§§ 4019, 2933.1.) However, a defendant convicted of murder may not earn presentence conduct credit. (§ 2933.2, subds. (a), (c)); People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) Because section 2933.2 applies to the offender and not to the offense, it limits a murderer's credits irrespective of whether all of his or her offenses were murder. (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.) Therefore, since Woodward was convicted of murder, the court imposed an unauthorized sentence when it awarded him 298 days of presentence conduct credit.
Section 2933.2, in pertinent part, provides: "(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)."
Moreover, "[i]n a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Additionally, " '[t]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also id., subd. (a).)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30; see Cal. Rules of Court, rules 4.310, 4.472.) "A sentence that fails to award legally mandated custody credit is unauthorized." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Further, rule 4.433(d), provides that sentencing must occur and be determined in a single hearing unless the sentencing judge orders otherwise in the interests of justice. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044 [discussing predecessor rule, former rule 433(d)].)
All further rule references are to the California Rules of Court. --------
At the January 14, 2016, sentencing hearing, the court imposed sentence, ordered Woodward to pay certain fines and fees, reserved the issue of restitution to the victim's family, and awarded Woodward presentence custody credit. Neither of the parties asked for a continuance, nor did the court continue the hearing on its own initiative. Thus, for purposes of calculating presentence custody credit, Woodward was sentenced on January 14, 2016, and he was not in presentence custody from January 15, 2016, through January 21, 2016. It follows that the court's award of seven days of presentence actual custody credit for that period of time constituted an unauthorized sentence.
DISPOSITION
The judgment is modified to strike the 298 days of presentence conduct credit the court awarded Woodward and to reduce his award of presentence actual custody credit from 1,989 days to 1,982 days. The trial court is directed to prepare an abstract of judgment that incorporates these modifications and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.