Opinion
C091517
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES JOSEPH ESTES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F918)
After he pleaded no contest to evading an officer with disregard for public safety and unlawfully driving or taking a vehicle, defendant James Joseph Estes was placed on formal probation in Shasta County. Defendant violated probation, and the trial court issued a bench warrant for his arrest. Later, defendant committed new crimes in Sutter County and was arrested for those crimes and on the Shasta bench warrant. Defendant was sentenced to prison for his Sutter County offenses before he returned to the Shasta County Superior Court.
The Shasta County Superior Court (1) sentenced defendant to a term of three years eight months on his Shasta case; (2) resentenced defendant on his Sutter case to a consecutive subordinate term, but declined to credit any time spent in custody beyond the period of incarceration for that revised, shorter term; and (3) did not combine the sentences in the two cases into a single aggregate term.
On appeal, defendant contends the trial court erred by (1) failing to pronounce a single aggregate term; (2) failing to properly award him the correct amount of presentence custody credit on his Shasta case, resulting in "dead time"; and (3) failing to properly calculate all postsentencing credit vis-à-vis his Sutter case. The People agree with defendant's first claim, as do we. We also agree with defendant's second and third claims.
Accordingly, we will remand the matter with directions to pronounce a single aggregate sentence and to properly calculate sentence credits.
RELEVANT BACKGROUND
In March 2017, defendant pleaded no contest to one count of evading an officer with disregard for public safety (Veh. Code, § 2800.2) and one count of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)).
The Shasta County trial court imposed but suspended execution of a state prison sentence of three years eight months, consisting of the upper term of three years on the evading offense, and eight months (one-third the middle term) on the vehicle theft offense. The trial court placed defendant on three years' formal probation, and imposed various costs.
In April 2018, after defendant violated probation, the trial court summarily revoked probation and issued a "no bail" bench warrant for defendant's arrest.
In August 2018, defendant was arrested in Sutter County. A probation officer's report states that arrest was "on new felony offenses and [the April 2018] warrant out of Shasta County."
In March 2019, defendant was sentenced in Sutter County on his new felony offenses to an aggregate term of three years, with 440 days of presentence credit (220 actual days in custody and 220 days of conduct credit).
In December 2019, the trial court terminated probation in the Shasta County case and imposed the previously suspended sentence of three years eight months. The trial court stayed all fines and fees imposed in March 2017, and reserved victim restitution.
The trial court resentenced defendant in the Sutter case to a term of one year eight months, characterizing this as a "consecutive sentence," and granted defense counsel's request to "come back . . . next week" for proper calculation of custody credits.
In the interim, the trial court received a probation memorandum that calculated defendant's entitlement to 137 actual days in custody and 136 days of conduct credit, for a total of 273 days credit. The memo stated that defendant was (1) "not entitled to the credits earned in Sutter County as he was already sentenced on those credits," and (2) "not entitled to credits" after he began serving his "[s]tate [p]rison sentence" in the Sutter case.
The time between defendant's February 2017 arrest and June 2017 release from custody on the Shasta County offenses, before his August 2018 arrest for the Sutter offenses and the Shasta bench warrant.
At the credits hearing, defense counsel objected to the calculation of credits in the probation memorandum, arguing that defendant was entitled to credit for a "significant period of time that he . . . spen[t] in custody beyond" the newly "restructured . . . sentence" in the Sutter case. The trial court disagreed, explaining that it was "not familiar with the law that would authorize that," and in any event, "[i]t was incumbent on" defendant, "once he was . . . sentenced in another county," to "demand in a timely fashion" the credits counsel was asking for. "[U]nfortunately," the trial court observed, defendant's "loss of those credits," was "on him." Accordingly, the trial court "award[ed] the credits as stated in the [probation] memo."
The abstract of judgment, which lists the Sutter case as an "incompleted sentence[ ] consecutive," reflects only the three-year eight-month sentence imposed in the Shasta case.
Defendant timely appealed.
DISCUSSION
I
The parties agree that the trial court erred by failing to pronounce a single aggregate sentence. We agree, and will vacate the sentence imposed and remand for resentencing.
Penal Code section 1170.1, subdivision (a), provides in pertinent part: "[W]hen any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable [recidivist] enhancements . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed
Undesignated statutory references are to the Penal Code.
California Rules of Court, rule 4.452(a) provides in pertinent part: "If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations: [¶] (1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case. [¶] (2) The judge in the current case must make a new determination of which count, in the combined cases, represents the principal term, as defined in section 1170.1(a). . . ." (Italics added.)
Undesignated rule references are to the California Rules of Court.
Here, though it sentenced defendant under section 1170.1, subdivision (a), the trial court did not pronounce a "single aggregate term" (and the abstract of judgment does not reflect one). Rather, it pronounced a term for the Shasta case and a separate term for the Sutter case, and did not combine them as though they were "counts in the current case."
We agree with the parties that the trial court erred thereby and must pronounce a single aggregate sentence.
II
Defendant also argues the trial court should have awarded to him credit "for all the time he served when the trial court resentenced him on his Sutter case to an aggregate term with his Shasta case." Specifically, defendant contends that when he was arrested in August 2018 on the Sutter offenses and the Shasta bench warrant, "his custody was attributable to both" the Sutter and Shasta cases, so that when the trial court resentenced him on the Sutter case (reduced from three years to one year eight months), the "resulting . . . 145 days of dead time" (according to the calculation in defendant's opening brief) should have been credited to his Shasta case. Defendant cites In re Marquez (2003) 30 Cal.4th 14 and People v. Gonzalez (2006) 138 Cal.App.4th 246 in support.
While acknowledging that defendant's time in custody "exceeded his sentence" in the Sutter case, the People contend: (1) principles articulated in In re Rojas (1979) 23 Cal.3d 152 preclude crediting defendant's "time spent in prison against the Shasta County sentence," and (2) because defendant's "Sutter County custody at issue here was not attributable at all to the conduct underlying the Shasta County offense," "crediting the excess custody credits in the Sutter" case "to reduce the sentence" in the Shasta case, "would violate section 2900.5."
We agree with defendant that the trial court erred by failing to credit his Shasta case with the time defendant spent in custody beyond the (resentenced) one-year eight-month period of incarceration for his Sutter case.
In his reply brief, defendant appears to articulate a different version of this claim and arrives at a different number of credits to which he purportedly is entitled. Defendant does not ask us to recalculate credits. He seeks remand. Defendant can clarify his position in the trial court.
Relevant Statutes
Section 2900.5, subdivision (a) provides in pertinent part: "In all felony . . . convictions, . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . [or] prison, . . . all days of custody of the defendant, . . . shall be credited upon his or her term of imprisonment . . . ."
Section 2900.5, subdivision (b) provides: "For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (Italics added.)
Relevant Case Law
In People v. Phoenix (2014) 231 Cal.App.4th 1119 (Phoenix), we considered "whether a trial court that imposes a consolidated sentence under sections 669 and 1170.1, subdivision (a), and rule 4.452, must calculate and award custody credits related to the earlier case when the sentence in the earlier case was originally imposed in another county." (Phoenix, supra, at p. 1124.) We answered in the affirmative. (Id. at p. 1129.)
Along the way, we discussed a number of authorities that are relevant here, including section 2900.5, Rojas, Marquez, and Gonzalez. (See Phoenix, supra, 231 Cal.App.4th at pp. 1125, 1128-1129.)
We noted that in Rojas "our high court . . . recognized" that section 2900.5, subdivision (b)'s requirement that credit " 'be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed,' " "means[ ] 'a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration,' " "because, the defendant would have been in custody serving the earlier sentence had there been no other matters pending." (Phoenix, supra, 231 Cal.App.4th at p. 1128.)
But we observed that if, after being resentenced on a first case pursuant to section 1170.1, defendant's "time may have been served on that case at some point before he was sentenced on" the second case, defendant would be "entitled to have the remaining time for which he was in custody in connection with the" second case credited to the second case. (Phoenix, supra, 231 Cal.App.4th at p. 1128.)
We explained: "This is so because after [the defendant's] time was served on the . . . sentence on the [first] case, his custody time was thereafter 'solely attributable' to the [second] case, and the failure to award credits for that time would result in 'dead time.' (People v. Torres (2012) 212 Cal.App.4th 440, 442-447 [when, pursuant to § 1170.1, subd. (a), a defendant is resentenced on a prior case to a subordinate term sentence that is less than the credits earned on that case, the trial court must allocate the unused credits to the sentence on the newer case]; see In re Marquez[, supra,] 30 Cal.4th [at pp.] 17, 22-23 [defendant who had been in custody for a prison sentence from Santa Cruz County and later, simultaneously in presentence custody for a pending case from Monterey County, was entitled to credits on the Monterey County case when the Santa Cruz County case was reversed on appeal and dismissed, because once the Santa Cruz case was dismissed, defendant's custody time was attributable only to the Monterey County case]; People v. Gonzalez[, supra,] 138 Cal.App.4th [at p.] 254 [where defendant was in custody for probation violation and simultaneously in pretrial custody for a new case and later given a consolidated sentence involving both cases, once the portion of the sentence related to the case for which defendant had been on probation was completed, the remainder custodial time should have been characterized as 'solely attributable' to the new case and credited to that sentence; otherwise the result would be ' "dead time" ' 'in contravention of Marquez.'].)" (Phoenix, supra, 231 Cal.App.4th at pp. 1128-1129.)
Here, after his August 2018 arrest for the Sutter offenses and the "no bail" Shasta bench warrant, defendant was simultaneously in custody for the Sutter case and the Shasta case. Phoenix instructs that to the extent that (after resentencing) defendant's time was fully served on the Sutter case before he was sentenced on the Shasta case, defendant was "entitled to have the remaining time for which he was in custody in connection with the [Shasta] County case credited to the [Shasta] County sentence." (Phoenix, supra, 231 Cal.App.4th at p. 1128.)
Accordingly, in light of the People's concession that defendant's time in custody "exceeded his sentence" in the Sutter case, the trial court erred in failing to credit to the Shasta case "the remaining time for which defendant was in custody . . . 'in connection with' " the Shasta case.
Contrary to the trial court's suggestion in overruling counsel's argument at the credit hearing, defendant did not "lose" those credits by failing to "demand" them "in a timely fashion." He is entitled to them as a matter of law. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) We shall remand for the trial court to properly calculate sentencing credits.
III
Finally, defendant argues that the trial court erred by failing to award him "credit for [the] 220 actual days and 220 conduct days for time spent in Sutter County jail," and "any time spent in prison on the Sutter . . . case." The People consider this claim to be "the same related issue of calculating and awarding the correct number of custody credits to [defendant's] Shasta . . . case," and therefore do not address the claim separately. We discern a distinct claim.
Invoking People v. Buckhalter (2001) 26 Cal.4th 20, defendant contends that this "matter must be remanded for the trial court to award credit" for "all the time spent in each county jail (Sutter and Shasta) and in the state prison."
But Buckhalter is inapposite, as that case only held that "a limited appellate remand for correction of sentencing errors does not transform a prison sentence already in progress into presentence custody for purposes of accruing conduct credits." (People v. Johnson (2004) 32 Cal.4th 260, 263, italics added.) Buckhalter has nothing to say about the situation presented here.
To the extent defendant is arguing that when sentence was pronounced in Shasta County Superior Court in December 2019, defendant was entitled to proper calculation of all presentence and (vis-à-vis the Sutter case) postsentencing credits, we agree. (See People v. Saibu (2011) 191 Cal.App.4th 1005, 1011-1012 [when imposing consolidated sentences under rule 4.452, sentencing court required to determine both presentence custody credits and actual days defendant served in prison custody on the earlier case, and to correctly reflect those calculations in the abstract of judgment].) Given the state of the record and briefing, that calculation should be made on remand.
It appears the People agree as well, as they ask us to remand to allow the trial court to pronounce the correct single aggregate sentence and "to amend the abstract of judgment to reflect the sentences and custody credits from both cases."
DISPOSITION
Following pronouncement of a single aggregate sentence and proper calculation of credits consistent with this opinion, the clerk of the trial court is directed to prepare an amended abstract of judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation.
KRAUSE, J. We concur: HOCH, Acting P. J. RENNER, J.