Opinion
F075039
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK DION MILLER, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRLO10491)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Judge. (Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
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INTRODUCTION
On July 25, 2014, appellant Frederick Dion Miller pled no contest to one count of violating Vehicle Code section 2800.2, subdivision (a), driving in willful disregard for the safety of others while fleeing from a pursuing officer, and admitted seven prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b), in exchange for an agreed upon sentence. The trial court imposed the sentence, suspended execution, and placed Miller on felony probation on condition he serve two years in a treatment facility, with the proviso he not receive custody credit for his time in treatment.
References to code sections are to the Penal Code unless otherwise specified. --------
When Miller violated probation, the previously imposed sentence was executed. Miller contends that the trial court erred in denying him custody credit for time spent in the treatment facility. He also contends the trial court erred in denying his motion to strike two of the prior prison term enhancements because the offenses were subsequently reduced to misdemeanors by Proposition 47. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On October 4, 2013, a criminal complaint was filed against Miller. Count 1 alleged a felony violation of Vehicle Code section 2800.2; seven section 667.5, subdivision (b), enhancements were appended to count 1. Count 2 alleged a misdemeanor violation of section 148, subdivision (a)(1). On May 14, 2014, Miller waived his right to counsel and elected to represent himself.
On July 25, 2014, Miller executed a felony advisement of rights, waiver, and plea form. Miller agreed to plead to the count 1 offense and admit the seven enhancements appended thereto. He would be sentenced to the upper term of three years for the count 1 offense, plus one year for each of the enhancements, for a total of 10 years. In addition, he would receive a sentence of eight months in another case, to be served consecutively. The agreement was that execution of the sentence would be suspended and Miller would be placed on felony probation, with a minimum of two years to be served at the Delancey Street treatment facility in San Francisco.
At the hearing on July 25, 2014, the trial court accepted Miller's plea to count 1 and his admission of the enhancements, and his admission in the unrelated matter referenced in the plea form. The trial court imposed sentence in accordance with the plea agreement, then suspended execution of the sentence and placed Miller on 48 months' felony probation, subject to "the terms and conditions set forth in the order of probation." During the hearing, the trial court verbally informed Miller that one of the conditions was that he enroll in and complete a minimum two-year treatment program at the Delancey Street facility in San Francisco. The trial court also verbally notified Miller that he would "receive no custody credit while in that program."
The order granting felony probation, filed on July 25, 2014, contains a provision requiring Miller to complete a residential treatment program of at least two years at the Delancey Street facility. It also specifically provides, "Defendant to receive no custody credits while in said program." Miller's signature, acknowledging receipt of a copy of the order, appears on the last page of the order.
On June 30, 2015, an affidavit alleging Miller violated probation was filed. The affidavit stated that Miller failed to complete the Delancey Street program as required. The trial court revoked probation on July 10, 2015, and issued an arrest warrant. On December 11, 2015, Miller waived his right to counsel and elected to represent himself.
On January 6, 2016, Miller filed a motion asking the trial court to exercise its discretion pursuant to section 1385 to dismiss two of his section 667.5, subdivision (b), enhancements because the two offenses underlying those enhancements would be misdemeanors if committed after enactment of Proposition 47. The motion did not itself seek reclassification of the prior convictions. The People filed opposition to Miller's motion, construing it as a section 17, subdivision (b) motion, and arguing the trial court had no authority to modify a previously imposed sentence.
On January 27, 2016, Miller filed a motion to withdraw his plea and vacate the judgment. Miller filed supplemental pleadings in support of this motion on February 17, 2016.
On March 18 and April 1, 2016, some of Miller's prior convictions were reduced to misdemeanors by order of the Los Angeles County Superior Court. They were for section 484 and Health and Safety Code section 11350 offenses.
Miller admitted the probation violation on April 15, 2016. At that time, the trial court denied Miller's motion pursuant to section 17, subdivision (b), and reserved ruling on the motion under section 1385.
On November 18, 2016, the trial court denied the motion to strike two of the enhancements and to vacate the judgment, concluding that it no longer had discretion to set aside or vacate the judgment, or strike the enhancements. The trial court viewed its discretion as a choice between reinstating Miller on probation, or "lift the suspension and send him back to prison." The trial court opined that it would be "difficult" to place Miller on probation again and "it well may be an abuse of discretion not to impose the sentence that was suspended." The trial court denied probation and stated it will "submit the defendant to the previously suspended sentence."
The trial court awarded total credits of 1,392 days; 696 days of conduct credit and 696 days of custody credit. Miller objected to the amount of credit awarded, stating he did not "knowingly, intelligently waive any credits to go to Delancey Street." The trial court found Miller had waived custody credits and stated Miller's objection to the award of credits was on the record.
The abstract of judgment reflects the sentence imposed on July 25, 2014, of three years for the substantive offense and seven years for the enhancements. Miller was awarded a total of 1,392 days of credits.
Miller filed a timely notice of appeal on January 19, 2017, and requested a certificate of probable cause. The request was granted.
DISCUSSION
Miller raises two issues in this appeal. First, he contends the trial court erred in refusing to grant custody credit for the time spent in the Delancey Street treatment program. Second, Miller contends the trial court erred in not striking two of the enhancements because the underlying convictions were subsequently reduced to misdemeanors under Proposition 47.
Section 667.5 Enhancements
Imposition of a sentence enhancement under section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed the term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.)
Miller admitted the seven prior prison term enhancements at the change of plea hearing and initial sentencing. Subsequent to the imposition of sentence, apparently three of Miller's convictions were reduced to misdemeanors. It appears only one of the convictions reduced to a misdemeanor, for violating Health and Safety Code section 11350, had been used to enhance Miller's sentence.
In People v. Johnson (2017) 8 Cal.App.5th 111, review granted April 28, 2017, S240509, we concluded that where the Proposition 47 reduction of an offense to a misdemeanor occurred after the commission of, conviction on, and imposition of sentence on a current crime had occurred, the redesignation did not alter the current sentence. (People v. Johnson, at p. 115.) In People v. Call (2017) 9 Cal.App.5th 856 (Call), this court held that when the Proposition 47 reduction of an offense to a misdemeanor occurred after the commission of and conviction on a current offense, but before imposition of sentence on the current offense, imposition of the section 667.5 enhancement for such an offense would be error. (Call, at pp. 862, 865.)
When a trial court imposes sentence, but suspends its execution and places a defendant on probation, the defendant has the opportunity to challenge the sentence by an appeal of the order granting probation. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez).) When the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable. "This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires." (Ibid.)
Miller had 60 days from the July 24, 2014, imposition of sentence and grant of probation in which to appeal. (Cal. Rules of Court, rule 8.308(a).) He did not appeal.
Section 1203.2, subdivision (c), provides in relevant part that upon revocation and termination of probation, "if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect." Section 1203.2, subdivision (c), is construed as precluding a trial court from modifying the previously imposed sentence upon revocation of probation; it must order the exact sentence into effect. (People v. Howard (1997) 16 Cal.4th 1081, 1088; Ramirez, supra, 159 Cal.App.4th at p. 1424.)
Here, sentence was imposed on Miller and became final for the current offense before reduction to a misdemeanor of the prior conviction used to enhance his sentence. Thus, Miller is not similarly situated to the defendant in Call. Upon revocation of probation, the trial court complied with section 1203.2, subdivision (c), and applicable case law and ordered the exact sentence imposed on July 25, 2014, into effect. The trial court did not err in refusing to modify the previously imposed sentence by striking one, or more, of the section 667.5 enhancements.
Custody Credits
Miller was told at the July 25, 2014, change of plea and sentencing hearing that a grant of probation would be conditioned on a two-year commitment to the Delancey Street facility, during which he would accrue no custody credit while in that program. The written order granting felony probation specifically states, "Defendant to receive no custody credits while in said program." Miller's signature, acknowledging receipt of a copy of the order, appears on the last page of the order. We conclude Miller expressly waived his right to future custody credit as set forth in the probation order as a condition of probation and that in doing so, he was aware of the consequences of his waiver. (People v. Thurman (2005) 125 Cal.App.4th 1453, 1460.)
Under section 2900.5, a defendant is entitled to credit for time spent in custody, including time spent in a "rehabilitation facility." Section 2900.5 applies to custodial time a defendant spends in a residential treatment facility. (People v. Johnson (2002) 28 Cal.4th 1050, 1053.) A defendant may "expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody." (Id. at pp. 1054-1055.) A trial court requiring a defendant to waive potential rights to future custody credit is a valid exercise of its power in specifying the terms and conditions of probation. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921.)
Miller was admonished verbally and in writing that accepting probation and a commitment to the Delancey Street program would include waiving custody credits for time spent in that facility. Miller never challenged the custody waiver provision at the hearing where he was granted probation, or in an appeal of that order, and the order is now final. In general, "an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (Ramirez, supra, 159 Cal.App.4th at p. 1421.)
We recognize that Miller's plea form did not specify a waiver of custody credit for time spent in the Delancey Street facility. The plea agreement specified that Miller would be placed on felony probation and be subject to terms of probation. There is no indication that custody credits were a subject of negotiations between Miller and the People, or that the People in any way misled Miller as to what conditions of probation would be imposed. Consequently, the challenged condition of a waiver of custody credits "was not encompassed by the parties' plea negotiations" and imposition of the condition therefore does not violate the plea agreement. (People v. Lopez (1998) 66 Cal.App.4th 615, 636.)
At the November 18, 2016, hearing where Miller was arguing that probation be reinstated instead of ordering the prison sentence into effect, Miller explicitly acknowledged he understood custody credits and waivers when he stated:
"So much so that I'm willing to stipulate to a waiver of the court credit for time served provision of Penal Code section 2900.(5)(a)(f), People vs Johnson, 2002, and People vs Davenport, 2007, credit for time served rendered as restored of justice in this case against me which are as[ ]which are[ ]which is[ ]which are as stand 1,047 actual days. 700 days in Merced County Jail, and 347 days in Delancey Street Foundation. I'm willing to stipulate to the waiver of these credits for time served of 1,047 days seeking to be reinstated on probation. People vs Medina, 2001."
Here, Miller was expressly admonished verbally and in writing that a grant of probation would require a waiver of custody credit for time spent in the Delancey Street facility; Miller never challenged that condition at the hearing; Miller never appealed from the order; and Miller evidenced the knowledge to knowingly and intelligently waive his rights under section 2900.5. Thus, there was a valid waiver of custody credit. (People v. Arnold (2004) 33 Cal.4th 294, 309 (Arnold).) As the Supreme Court stated in Arnold:
"A rule that gives back previously waived credits to a defendant as a consequence of his future violation of probation thus rewards him for his own misconduct. It is also unjust enrichment, as the defendant would be getting the benefit of the bargain reached at his original sentencing and later be permitted to revoke the consideration he gave up to obtain the benefit of that bargain. As a matter of sound sentencing policy, the law should not afford probationers incentives or rewards for refusing to comply with the terms and conditions of probation." (Arnold, supra, 33 Cal.4th at p. 308.)
The record discloses that Miller knowingly and intelligently waived his right to receive custody credit for time spent in the Delancey Street treatment program and he is not entitled to those credits when probation is revoked. (Arnold, supra, 33 Cal.4th at pp. 308-309.)
DISPOSITION
The judgment is affirmed.