Opinion
A166863
01-31-2024
The PEOPLE, Plaintiff and Respondent, v. Lamont Alexander DEAN, Defendant and Appellant.
Trial Court: Mendocino County Superior Court, Trial Judge: Hon. Keith Faulder (Mendocino County Super. Ct. Nos. SCUKCRCR202036556-1, SCUKCRCR202037103-1) Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin, Gregg E. Zywicke, Deputy Attorneys General for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II–IV of the Discussion section, post.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: Mendocino County Superior Court, Trial Judge: Hon. Keith Faulder (Mendocino County Super. Ct. Nos. SCUKCRCR202036556-1, SCUKCRCR202037103-1)
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin, Gregg E. Zywicke, Deputy Attorneys General for Plaintiff and Respondent.
BROWN, P. J.
Lamont Dean was convicted of assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1)) and one prior strike allegation (§§ 667, subds. (b)–(i), 1170.12), as well as a separate offense of bringing drugs into a jail (§ 4573.6, subd. (a)). The trial court sentenced him to 13 years in prison and imposed various fines and fees. We reversed and remanded for resentencing due to an intervening change in the sentencing law. (People v. Dean (June 29, 2022, A162706), 2022 WL 2338912 [nonpub. opn.] (Dean).) On remand, the trial court sentenced Dean to a total of nine years in prison and imposed various fines and fees. Dean again appeals, raising challenges to the trial court’s calculation of his custody credits, imposition of fines despite his indigency, refusal to set aside his admission to the strike allegation at his trial for lack of the required admonitions, and denial of his motion under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44. The Attorney General concedes error on the first three issues. We need not address Dean’s Marsden argument because we agree with the parties that Dean’s first three arguments require reversal and remand for further proceedings.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The details of Dean’s offenses are set forth in Dean and are irrelevant here, so we need not repeat them. The background relevant to this appeal begins with the pretrial settlement discussions. Before trial, the prosecutor made a plea bargain offer of the low term for the assault charge, doubled, and dismissal of the drug charge. Dean’s counsel told the court that Dean had rejected the offer.
Two weeks later, before beginning voir dire, the trial court asked Dean whether he was willing to stipulate to the allegation that he had previously been convicted of assault with a deadly weapon. The court told Dean, "First thing we need to address is the strike that’s alleged in the information. [¶] Mr. Dean, as you know, you have a right to have a jury trial or a court trial on the truth of that allegation. The strike would only be significant in terms of the consequence today or in this trial if the jury finds you guilty of a felony. It enhances the sentence. I know you and your attorney have talked about that." The court then asked, "With the understanding you have a right to a jury trial or a court trial on the strike, is it your intention to admit the truth of that strike and give up your right to have a jury or court trial on that?" Dean replied, "Stipulated." Dean’s counsel then affirmed to the trial court that he was joining in Dean’s waiver of both a jury trial and a court trial.
We grant Dean's request for judicial notice of the record in Dean.
The trial court continued, "Mr. Dean, with your rights in mind, having talked with your attorney, I need you to tell me if you admit or deny that you suffered a conviction for assault with a deadly weapon, violation of Penal Code section 245(a) in Solano County in November of 1999. [¶] Do you admit that that is true, sir?" Dean replied, "Yes, your Honor." Dean’s counsel again joined in the waiver and admission.
After the jury found Dean guilty as charged, the trial court sentenced Dean to the upper term of six years on the assault conviction. The court then doubled it based on the strike that Dean had admitted, for a total of 12 years. The court also sentenced Dean to one consecutive year for a later offense of smuggling fentanyl into the jail. Dean’s total sentence was therefore 13 years. The court calculated 176 days of actual time served and 26 days of credit pursuant to section 2933.1, for total credits of 202 days. The court also imposed various fines and fees.
Dean appealed, arguing he was entitled to the retroactive application of an intervening amendment to section 1170. We agreed and remanded to the trial court for a complete resentencing. Dean had also argued that the imposition of fines and fees without a hearing to determine his ability to pay them was unconstitutional and that the statutory authority for one of the fines had been repealed. We declined to address those arguments because the trial court could consider the fines anew on resentencing.
In the resentencing hearing on remand, Dean asked the trial court to impose the low term and to strike all fines and fees because he was indigent. The court announced its intention to impose the middle term of four years, doubled to eight years because of the strike allegation, with an extra year for the drug charge, for a total of nine years.
Dean personally objected, arguing, among other things, that his prior conviction did not qualify as a strike. The trial court disagreed and said that the hearing was not to challenge the validity of the strike. It viewed our opinion as stating that the strike finding remained and the only purpose for the resentencing hearing was to decide between the middle and upper terms on the assault conviction.
Dean then told the trial court that when he admitted the strike, he thought it was going to be dismissed or stricken. He said he would never have admitted the strike had he known it would double his sentence. The trial court repeated that this issue was not before it. The court continued the hearing for an updated calculation of Dean’s custody credits. The court said it wanted some argument at the continued hearing about whether it had discretion to stay the $300 fine under section 290.3.
At the continued hearing, Dean began by making a Marsden motion. In a closed hearing, Dean raised various complaints against his counsel, including that his counsel had not challenged the validity of the prior strike. Dean reiterated that he would never have admitted the strike had he known it would double his sentence.
Dean’s counsel said the admission of the strike was a tactical choice. He also stated that the only remaining matter was the recalculation of his credits, so that any communication difficulties were no longer significant.
The trial court found Dean’s counsel had not fallen below a standard of professional representation and could continue to represent him because the only issue remaining concerned Dean’s credits against his sentence. The trial court therefore denied Dean’s motion.
Back in open court, the trial court confirmed that Dean’s prior conviction constituted a strike. The court then sentenced Dean to the middle term of four years, doubled to eight years, with a consecutive year for the drug conviction. In both the assault and drug cases the trial court stayed the $40 court security fees and $30 criminal conviction assessments. The court imposed the statutory minimum fines of $300 under section 1202.4. The court also imposed and stayed $300 parole revocation fines. In the assault case, the court imposed a $300 fine under section 290.3. The court struck the $412 probation report fee in the assault case.
The trial court then said Dean had earned 761 days actual credit with an additional 114 days pursuant to section 2933.1, for total credits of 875 days.
DISCUSSION
I. Calculation of additional credits
[1, 2] Dean first argues that, upon resentencing, the trial court should have updated only the calculation of actual time he served in prison and should not have updated the calculation of conduct credits for his time in prison. The Attorney General agrees. We are not bound by the Attorney General’s concession of error. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021, 184 Cal.Rptr. 483.) But after conducting our own independent investigation, we agree that the trial court erred by using the time Dean served in prison to update the calculation of Dean’s conduct credits.
In People v. Buckhalter (2001) 26 Cal.4th 20, 30–31, 108 Cal.Rptr.2d 625, 25 P.3d 1103 (Buckhalter), the Supreme Court reviewed the separate and independent conduct credit schemes for presentence custody in jail (§ 4019) and postsentence imprisonment (§ 2930 et seq.). It concluded from these statutes that when a defendant’s case is remanded to the trial court for resentencing, the trial court has a duty to update the calculation all actual time served, whether before or after sentencing and in jail or prison. (Buckhalter, at p. 29, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) But the defendant cannot earn additional good behavior credits under the presentencing credit scheme for time confined in the jail pending resentencing, because such good behavior credits are available only to defendants before an initial sentencing. (Ibid.) Instead, the defendant’s term-shortening credits during resentencing must be calculated exclusively under the postsentence scheme, which gives the Director of Corrections the authority to establish and administer procedures for accrual and forfeiture of credits for time in work or other programs in prison. (Id. at pp. 29–31, 108 Cal.Rptr.2d 625, 25 P.3d 1103.)
The California Supreme Court later reached the same conclusion when a defendant’s conviction is reversed on appeal and when a trial court recalls a defendant’s sentence. (People v. Johnson (2004) 32 Cal.4th 260, 263, 8 Cal. Rptr.3d 761, 82 P.3d 1244.)
At the original sentencing, the trial court calculated that Dean was entitled to 26 days of additional credit for his time in jail, which reflected a 15 percent cap on presentence or postsentence conduct credit under section 2933.1 for defendants convicted of a felony listed in section 667.5, subdivision (c), like Dean. At the resentencing, the trial court updated that calculation and said Dean had earned 114 days of additional credit, again based on the 15 percent cap in section 2933.1. Dean argues the trial courts for many years have customarily updated conduct credit allegations in this manner, based on a misreading of Buckhalter as requiring the trial court to recalculate both the actual time served and conduct credits when resentencing. In reality, Buckhalter said only that resentencing courts must recalculate actual time served. Dean argues that this customary approach, while erroneous, used to be a harmless overreach because trial courts calculated the conduct credits for the postsentence period using the same statutes — sections 2931 to 2933.6 — that the California Department of Corrections and Rehabilitation (CDCR) would have.
But in November 2016, the voters enacted article I, section 32 of the California Constitution, the Public Safety and Rehabilitation Act of 2016, subdivision (a)(2) of which states, "The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements." Subdivision (b) of the same provision requires the CDCR to adopt regulations to carry out this authority. (Cal. Const., art. I, § 32, subd. (b) (Public Safety and Rehabilitation Act of 2016).) Dean contends this provision repealed section 2933.1 to the extent that it capped postsentence conduct credits for defendants like Dean. He contends he is eligible for more worktime credits under the CDCR’s new regulations enacted pursuant to its new constitutional authority. (See Cal. Code Regs., tit. 15, §§ 3043–3043.6.) According to Dean, the trial court’s calculation of additional conduct credits for the postsentence period pursuant to the 15 percent cap in section 2933.1 was therefore incorrect and deprived him of term-shortening credits.
Dean appears to be correct that the Public Safety and Rehabilitation Act of 2016 effectively repealed sections 2933.1 as to postsentence worktime credits. However, we need not conclusively answer that question. Even if section 2933.1 remains in force, the trial court still erred under Buckhalter by calculating additional credits for Dean’s postsentence imprisonment, as the Attorney General concedes. Buckhalter only required a trial court resentencing a defendant to recalculate "all actual time" the defendant has served. (Buckhalter, supra, 26 Cal.4th at p. 29, 108 Cal.Rptr.2d 625, 25 P.3d 1103, italics omitted.) The CDCR is responsible for calculating a defendant’s postsentence credits. (Id. at pp. 29–30, 108 Cal.Rptr.2d 625, 25 P.3d 1103.)
If this were the only problem with Dean’s new sentence, we would simply order the abstract of judgment corrected by stating his actual time credits, including his time in prison, and reverting back to the initial calculation of 26 days of additional presentence conduct credits. The CDCR would then be free to determine any additional credits Dean may have earned after his initial sentence beyond his actual time served. However, because we are remanding to correct the other errors discussed below, we will instruct the trial court to calculate Dean’s credits in line with these principles when it resentences him on remand.
See footnote *, ante.
DISPOSITION
The true finding on the strike allegation is set aside. The matter is remanded for further proceedings not inconsistent with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR:
GOLDMAN, J.
SMILEY, J.*a