Opinion
E053247 Super.Ct.No. FVW901802
08-08-2011
In re HECTOR M. POLANCO On Habeas Corpus.
Stephen M. Hinkle for Petitioner. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith A. Strong, Deputy Attorneys General for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Stephan G. Saleson, Judge. Petition granted in part and denied in part. Stephen M. Hinkle for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith A. Strong, Deputy Attorneys General for Respondent.
In this matter we are called upon to determine how presentence custody credits are to be awarded under Penal Code section 4019 when the petitioner was incarcerated both prior and subsequent to the time that statute was amended on January 25, 2010. Both this issue and a closely related issue are currently before the Supreme Court in People v. Zarate (2011) 192 Cal.App.4th 939, review granted May 18, 2011, S191676, which held that a two-tiered division of presentence custody credits was improper; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, which held that the amendment applied retroactively; and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which held that the amendment was not retroactive. As that court will have the last word on the subject, we will discuss the issue only summarily. We agree that the petitioner was not awarded all of the presentencing credits to which he is entitled under amended section 4019, and therefore grant his petition on that issue.
All further statutory references are to the Penal Code unless otherwise indicated.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to the version that existed prior to the amendment of January 25, 2010. The newest amendment applies only to those crimes committed after its effective date. (§ 4019, subd. (g).) The discussion in this opinion concerns only the amended version of section 4019 that was in effect from January 25, 2010, through September 27, 2010. Thus, any reference to amended section 4019 refers to that version of the statute and any reference to former section 4019 refers to that version of the statute in effect prior to January 25, 2010.
Petitioner also asserts that the Department of Corrections and Rehabilitation failed to award him any conduct credit for the time spent awaiting transfer to state prison after he was sentenced. (§ 2933, subd. (e).) However, petitioner has not sought relief from the Department of Corrections and Rehabilitation for its failure to award postsentencing credits earned while awaiting transfer and has provided no excuse for having failed to do so. (See In re Strick (1983) 148 Cal.App.3d 906, 911 [Fourth Dist., Div. Two].) Petitioner having failed to first exhaust his administrative remedies with respect to the claim for an additional 12 days postsentencing conduct credits under section 2933, as to those credits, the petition is denied. (In re Muszalski (1975) 52 Cal.App.3d 500, 508 [Fourth Dist., Div. Two].)
STATEMENT OF THE CASE
After pleading nolo contendere to threatening a witness (§ 140, subd. (a)), petitioner was sentenced to four years in state prison on June 25, 2010, (references to the record are to the record in petitioner's appeal case No. E052685 of which we take judicial notice (Evid. Code, §§ 452, subd. (d), 459).) Petitioner was incarcerated from the time of his arrest on August 6, 2009, through sentencing. At the time of sentencing, petitioner was awarded 172 actual days and 86 conduct days for time served prior to January 24, 2010, and 152 actual days and 152 conduct days for time served from January 25, 2010, until sentencing for a total of 562 days.
On July 2, 2010, the trial court received a letter from petitioner requesting a correction to the credits awarded because of a discrepancy in his arrest date. He later requested a reduction in his fines and fees. These documents were forwarded by the court to petitioner's attorney. On October 15, 2010, petitioner filed a motion for the award of additional conduct credits based upon section 2933. That motion requested that appellant be awarded half-time credits for the time he spent as a "'process case,'" which he defined as the time he spent within the Department of Corrections prior to appearing before initial classification and the commencement of section 2933 credits. In that motion, petitioner averred that he did not receive any section 2933 time credits for the time he spent as a process case or for the postsentence but pre-transport time that he spent in county jail. There was no specific request that additional presentence credits be awarded pursuant to section 4019. This document was also forwarded to petitioner's attorney. Petitioner then notified the trial court that he had dismissed his retained attorney for ineffective assistance of counsel. No action was taken on any of petitioner's motions until December 9, 2010, when the trial court relieved petitioner's appointed counsel and appointed a public defender, then denied each of petitioner's requests, indicating "I don't believe Mr. Polanco, in reviewing the credit situation, is entitled to any further credits." At the request of newly appointed counsel the rulings were made without prejudice. Petitioner filed a timely notice of appeal. Petitioner also filed this petition for a writ of habeas corpus.
DISCUSSION
A. Ineffective Assistance of Counsel
As a preliminary issue, the People assert that petitioner is not entitled to relief by way of a petition for a writ of habeas corpus because he failed to first raise the issue on direct appeal. Generally, issues that could have been raised in a direct appeal, but were not, cannot be the subject of a petition for habeas corpus. (In re Dixon (1953) 41 Cal.2d 756, 759.) It is clear that petitioner did not file an immediate appeal from his sentence.
The attorney appointed to represent petitioner in this matter points out that petitioner has filed an appeal from the denial of his October 15, 2010, motion regarding "full crediting of back time credits," and therefore the People's argument that petitioner failed to pursue his appellate remedy fails. Not so. In the first instance, the fact that petitioner has appealed the denial of a motion brought some four months after he was sentenced does not make up for the fact that he had an appellate remedy from the defective sentence based upon amended section 4019 and did not timely pursue it. In addition, the basis for the October 15, 2010, motion is less than obvious and it does not, on its face, argue that petitioner should be credited with 86 days of additional presentence credits pursuant to amended section 4019. On the contrary, the first time that argument was clearly and unequivocally raised by petitioner was in this petition for a writ of habeas corpus. Petitioner cannot avoid the claim that he failed to pursue his appellate remedy by pointing to the appeal filed January 5, 2011. That does not end our inquiry however.
The parties were asked to provide supplemental briefing on the issue whether petitioner's failure to file a direct appeal from his sentence constituted ineffective assistance of counsel. The People assert that there was no ineffective assistance of counsel because the trial court correctly applied a two-tiered division of the presentence custody credits under amended section 4019. Therefore, the People assert, petitioner cannot demonstrate the prejudice necessary to a claim for ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Because we disagree with the People's analysis of the trial court's actions, instead finding that it did err in applying the two-tiered division of presentence custody credits, we find this argument unpersuasive.
Despite the existence in the record of evidence (1) that petitioner informed the trial court that he believed he had suffered from ineffective assistance of counsel, and (2) that petitioner consistently struggled to challenge his sentence on his own, petitioner's appointed counsel has also urged that there was no ineffective assistance of counsel in failing to raise the amended section 4019 presentence custody credits issue on direct appeal from the judgment. He takes this position based upon a claim that the decision in People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 (Otubuah)[Fourth Dist., Div. Two], decided on April 7, 2010, meant that the law was against petitioner on this issue until the publication of People v. Zarate, supra, 192 Cal.App.4th 939, on February 14, 2011. This is nonsense and borders on ineffective assistance of counsel in itself. The defendant in Otubuah had been sentenced prior to the change in section 4019, and his case therefore dealt solely with retroactivity issues not present in petitioner's case. (Otubuah, supra, 184 Cal.App.4th at pp. 431-432.) Indeed, it is this court's experience that many, many defendants filed direct appeals from sentences wherein the trial court imposed a two-tiered division of presentence custody credits when the defendant was sentenced after the effective date of amended section 4019, despite the existence of the Otubuah case. It is this court's conclusion that the record in this case demonstrates that counsel's failure to file a direct appeal from the sentencing was not "'within the range of competence demanded of attorneys in criminal cases'" and that the deficient performance resulted in prejudice to petitioner in that it deprived him of an additional 86 days of presentence conduct credits to which he was entitled. (Strickland, supra, 466 U.S. at pp. 687-688.) Accordingly, we reach the section 4019 credits issue on the merits. B. Amended Section 4019 Applied at the Time of Sentencing
Petitioner contends that he is entitled to the additional presentence custody credits provided by amended section 4019 because he was sentenced at the time that code section was in effect. We agree. The issue here is not whether amended section 4019 should be applied retroactively or prospectively, but whether amended section 4019 applies to all presentence custody, even that which occurred prior to January 25, 2010, when a defendant is sentenced after the effective date of the amendment.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations. (Id., subd. (c)). "'Conduct credit' collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]" (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. However, in October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) These defendants were then eligible to earn two days of conduct credits for every two days of actual custody. (Ibid.)The amendments to section 4019 went into effect on January 25, 2010.
The California Supreme Court has stated: '"[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) . . . .)." (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).)"The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior. (Id., subd. (c)(1).) Both types of presentence credits are collectively referred to as "conduct credit[s]." (People v. Dieck, supra , 46 Cal.4th at p. 939, fn. 3.)
"Everyone 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. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b) . . . .)" (Buckhalter , supra , 26 Cal.4th at p. 30.) The former version of section 4019 granted fewer presentence custody credits. The amended version of section 4019 that was in effect when petitioner was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, "including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment" (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions "following arrest and prior to the imposition of sentence for a felony conviction." (Id., subd. (a)(4); accord, People v. Johnson (2004) 32 Cal.4th 260, 265.) If those persons are not required to register as sex offenders and are not being committed to prison for, or have not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
In the instant case petitioner's criminal act was committed prior to the amendment of section 4019 becoming effective. However, his sentencing did not take place until after the amendment's effective date. In calculating petitioner's conduct credit the trial court used a two-tier system. It first calculated petitioner's time in custody prior to January 25, 2010, and used former section 4019 to calculate conduct credit for that time. It then calculated petitioner's time in custody from January 25, 2010, and used amended section 4019 to calculate conduct credit for that time. This was error because amended section 4019 contains no provision for such a two-tiered division of the presentence custody credits. Moreover, former section 4019 was no longer valid at the time of petitioner's sentencing; and, therefore, the trial court was unauthorized to apply the previous statute to the petitioner's sentence.
DISPOSITION
The petition for writ of habeas corpus is granted on the issue of petitioner's section 4019 presentence conduct credits. The petition is denied on the issue of petitioner's section 2933 postsentence conduct credits earned while he was awaiting transfer to state prison. The superior court is directed forthwith to amend the sentencing minute order of June 25, 2010, and the abstract of judgment to reflect 648 days of presentencing credit, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The decision shall be final forthwith. (Cal. Rules of Court, rule 8.387(b)(3)(A).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Richli
Acting P.J.
We concur:
Codrington
J.
Miller
J.