Opinion
A147629 A149604
12-20-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS MARQUEZ GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR174486)
Defendant and appellant Luis Marquez Gonzalez pled no contest to one count of assault by means of force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(4)), and the trial court imposed a four-year prison term. Appellant appealed and his counsel asked this court for an independent review of the record to determine whether there are any arguable sentencing or other post-plea issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436 (Wende).) Subsequent to entry of judgment, appellant unsuccessfully moved below for an award of additional pre-sentence custody credits, resulting in a second appeal. This court consolidated the two appeals for purposes of decision. We now affirm the judgment and denial of the motion for additional custody credits.
All undesignated statutory references are to the Penal Code.
BACKGROUND
In May 2015, in case number CR174486 (the "Assault Case"), appellant was charged by information in Napa County Superior Court with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), disturbing the peace for the benefit of a criminal street gang (§§ 415/186.22, subd. (d)), and street terrorism (§ 186.22, subd. (a)). The information also alleged several sentencing enhancements, including a prior strike. Appellant had been arrested on February 6 for a January 30 incident during which appellant and another person allegedly repeatedly punched a victim; the assailants made gang-related comments and flashed an apparent gang sign. Appellant posted bail the day of his arrest and was released.
On April 29, 2015, appellant was arrested in an unrelated case, case number CR175413 (the "Burglary Case"). Appellant was charged by information with second degree burglary (§ 459), conspiracy (§ 182, subd. (a)(1)), commission of a new offense while released on bail (§ 12022.1, subd. (a)(1)), and possession of burglar's tools (§ 466). Appellant was held in custody on the case until he posted bail on June 16. On August 19, bail in the Assault Case was revoked after respondent filed a petition seeking revocation.
On November 13, 2015, in the Assault Case, appellant pled no contest to the assault charge (§ 245, subd. (a)(4)) and admitted a prior strike. The charges in the Burglary Case were dismissed with a Harvey waiver. Appellant agreed that victim restitution in the Burglary Case would be ordered in the Assault Case. The restitution was for large screen televisions removed from the wall of a laundromat.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
On January 7, 2016, appellant was sentenced to a four-year prison term, comprised of the low term of two years, doubled due to the prior strike. The trial court also ordered appellant to pay fines and fees, as well as $2,082.04 in victim's restitution in the dismissed Burglary Case. Appellant received 301 days of custody credits (actual and conduct credits). He did not receive custody credits for all or most of the time he spent in custody on the Burglary Case before bail was revoked in the Assault Case. Appellant filed a notice of appeal specifying it was based "on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
In September 2016, appellant filed a motion seeking additional pre-sentence custody credits. Appellant contended he was entitled to credits for time spent in custody in the Burglary Case, while he was on bail in the Assault Case. The court denied the motion. Appellant appealed.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellant's Motion for Additional Credits
On appeal, appellant contends the trial court erred in failing to award 103 days of custody credits pursuant to his motion for additional credits.
In his motion below and opening brief on appeal, appellant claimed he was denied 152 days of custody credits in the Burglary Case. But in his reply brief he agreed with respondent that the actual days in custody at issue are only 103. That calculation appears to disregard that appellant posted bail in the Burglary Case on June 16. In any event, the precise number of days in custody on the Burglary Case is unimportant, given that we reject appellant's claim for additional custody credits. --------
Section 2900.5 is the applicable statute. Section 2900.5, subdivision (a), provides in pertinent part: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . ." The outcome of the instant case turns on limiting language in section 2900.5, subdivision (b), which 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." (Ibid., italics added.)
In People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 (Bruner), the Supreme Court interpreted section 2900.5, subdivision (b) to mean that, "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." (See also In re Joyner (1989) 48 Cal.3d 487, 492 (Joyner).) However, in In re Marquez (2003) 30 Cal.4th 14 (Marquez), the court clarified that Bruner's "requirement of 'strict causation' . . . is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant." (Marquez, at p. 23.)
In Marquez, the defendant faced unrelated charges in Santa Cruz County and Monterey County. (Marquez, supra, 30 Cal.4th at p. 17.) He was arrested in Monterey County and released on bail. (Ibid.) He was then arrested and held in custody in Santa Cruz County, and Monterey County "placed a hold" on the defendant a month after the arrest. (Ibid.) He was convicted and sentenced first in the Santa Cruz case and granted credit for his time in custody; he was also convicted and sentenced in the Monterey case. (Id. at p. 18.) Subsequently, the conviction in the Santa Cruz case was reversed and appellant unsuccessfully sought "credit against his Monterey County sentence for time he spent in custody between the day he was sentenced in the Santa Cruz County case and the day he was sentenced in the Monterey County case." (Ibid.) The California Supreme Court held the defendant was entitled to credit for that period toward his sentence in the Monterey County case because "once Santa Cruz County dismissed its charges, all custody following Monterey County's hold, including the period between [the defendant's] sentencing in Santa Cruz County and his Monterey County sentencing" became attributable to the Monterey County case. (Id. at p. 20.) The court observed, "To deny [the defendant] credit for his time spent in custody between [sentencing in the two cases] would render this period 'dead time,' that is, time spent in custody for which he receives no benefit." (Ibid.)
Although Marquez expressed a preference for avoiding " 'dead time,' " the court also recognized that "[s]ometimes this result is unavoidable." (Marquez, supra, 30 Cal.4th at p. 20.) The court explained as follows, in language that offers direct guidance in the present case: "For example, had petitioner's Santa Cruz County presentence custody been attributable solely to the Santa Cruz County charges (that is, had Monterey County never placed a hold), dismissal of the Santa Cruz County charges would have left petitioner with no sentence against which credit for that period could be applied. But because his custody after placement of the Monterey County hold was attributable to both his Santa Cruz and Monterey County cases, dismissal of the Santa Cruz County charges still left him with the Monterey County sentence against which credit for all of his custody from placement of the Monterey County hold until imposition of sentence could be applied." (Marquez, supra, 30 Cal.4th at pp. 20-21.)
The present case presents the possibility contemplated by Marquez. Analogous to the hold at issue in Marquez, had appellant's bail in the Assault Case been revoked earlier, upon a request by either appellant or the prosecution, then the time served in the Burglary Case would have been attributable to both cases and appellant would be entitled to credits. But before bail was revoked, the time in custody was solely attributable to the Burglary Case. In contrast, in Marquez the period of confinement at issue was attributable to both cases and, following dismissal of one, the credits could be applied to the other. (Id. at pp. 22-23; see also People v. Phoenix (2014) 231 Cal.App.4th 1119, 1128-1129.)
Appellant argues a number of the prior cases denying credits did so because the credits award would have allowed the defendant to obtain credit towards two different sentences for one period in custody. (See, e.g., Bruner, supra, 9 Cal.4th at pp. 1191-1192; Joyner, supra, 48 Cal.3d at pp. 489, 492.) Appellant is correct that his claim is different than that at issue in Bruner and other cases because there is no possibility of duplicate credits; denial of credits for the period of custody at issue in the Burglary Case renders that period "dead time." Nevertheless, appellant cites no authority that the possibility that a period of custody will become "dead time" means a defendant must receive credits for the time. To the contrary, Marquez specifically contemplated the possibility that "dead time" might be "unavoidable." (Marquez, supra, 30 Cal.4th at p. 20.)
We also reject appellant's contention he is entitled to credits for time in custody in the Burglary Case because those charges were resolved pursuant to the same negotiated disposition that resolved the Assault Case. Appellant's contention is contrary to the plain language of section 2900.5, subdivision (b), providing that "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." Appellant was not convicted of the conduct in the Burglary Case. People v. Murillo (1986) 178 Cal.App.3d 232, is directly on point. There, the defendant was released on bail in two cases and then arrested in a third case and held in custody through sentencing in the first case; bail was revoked about a month before sentencing. (Id. at p. 235.) The second and third cases were dismissed with Harvey waivers. (Murilla, at p. 236.) The court of appeal held the defendant was not entitled to credits for periods of custody attributable to the dismissed cases. (Id. at pp. 236-237.) Instead, as the trial court found in the present case, the defendant's entitlement to credits began when bail was revoked as to the charges to which he pled guilty. (Id. at p. 237.) Relying on the express language of section 2900.5, subdivision (b), the Murillo court rejected the defendant's contention that it "was improper for the court to deny credit for custody on unrelated charges while at the same time to use the underlying facts of those charges to aggravate his sentence." (Murillo, at p. 237.) Even though, as in the present case, the charges in the other cases were dismissed with a Harvey waiver as part of a plea bargain, "the dismissals in those cases [cannot be] construed as 'convictions' for purposes of presentence credit." (Murillo, at p. 237.) The court observed that the result was not "unfair" because "[b]y obtaining the dismissal of unrelated cases, . . . defendant avoided the possibility of numerous additional criminal convictions and substantial additional periods of incarceration. It does not offend us that he must forfeit his claim to presentence custody credit to accomplish a result otherwise beneficial to him." (Id. at p. 238.)
II. Appellant Has Not Shown Denial of Additional Credits Was Unconstitutional
Appellant also contends the denial of credits for time in custody on the Burglary Case violated his constitutional right to equal protection and the separation of powers doctrine. Both claims are rooted in the prosecution's approximately 3.5 month delay in seeking revocation of bail in the Assault Case following appellant's arrest in the Burglary Case. We understand appellant to reason he was harmed by the delay because there is no question he would be entitled to credits for the period in custody on the Burglary Case if bail in the Assault Case had been revoked. He also claims the delay undermined the Legislature's intent vis-à-vis custody credit awards.
Appellant contends he has a constitutional right to receive the credits to which he is entitled under section 2900.5, subdivision (b). Assuming that is so, appellant's claim still fails because it rests on the mistaken factual premise that "the number of custody days appellant would receive rested completely within in the hands of" respondent. As respondent points out on appeal, and as the trial court pointed out below, appellant could have requested revocation of his bail and thereby ensured that the period of confinement on the Burglary Case could also be attributed to the Assault Case. As the court told appellant below, "Well, you know, that-one of the things that jumps out at me about this is that oftentimes when people come into custody on a second case, I ask defense counsel if they want me to exonerate the bond in the other case so this kind of thing won't happen. I don't recall if I was involved in the arraignment in these cases or not, but I don't-I mean that's how you take care of that issue."
In appellant's reply brief, he makes no response to the argument that he could have sought to have bail revoked. That undermines the basis for both of his constitutional claims (equal protection and separation of powers), which are premised on the prosecution's purported exclusive control over the timing of revocation of bail. Because we will not endeavor to make appellant's arguments for him, his constitutional claims require no further consideration. (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830.) III. Wende Review
We have also reviewed the whole record pursuant to Wende, supra, 25 Cal.3d 436, and have found no arguable appellate issues arising out of the trial court's sentence. (See People v. Cuevas (2008) 44 Cal.4th 374, 379 [absent certificate of probable cause, appeal following plea is limited to "postplea claims, including sentencing issues, that do not challenge the validity of the plea"].) The trial court's sentence, fines, and fees were proper. Appellate counsel advised appellant of his right to file a supplemental brief to bring to this court's attention any issue he believes deserves review. (See People v. Kelly (2006) 40 Cal.4th 106.) Appellant did not file a supplemental brief. There are no legal issues that require further briefing.
DISPOSITION
The trial court's judgment and post-judgment order are affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.