Opinion
E072693
06-24-2020
THE PEOPLE, Plaintiff and Appellant, v. RASHAD NAEEM SHABAZZ, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1600584) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed in part; reversed in part with directions. Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant and respondent Rashad Naeem Shabazz was charged by second amended information with battery on a custodial officer (Pen. Code, § 243, subd. (c)(1), count 1) and battery by gassing upon a peace officer in a detention facility (§ 243.9, subd. (a), counts 2-4). The second amended information also alleged that he had one prior prison conviction (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) A jury found defendant not guilty of count 2 and guilty of count 4. As to count 1, the jury found him guilty of the lesser included offenses of assault (§ 240) and resisting a peace officer (§ 148, subd. (a)). The trial court declared a mistrial as to count 3, after the jury deadlocked on that count, and the trial court found the prior conviction allegations true after a bench trial. The court sentenced defendant to eight years on count 4 and one year on the prison prior. It sentenced him to 365 days in county jail on count 1, to run concurrent with the sentence on count 4. The court also awarded credit for time served of 1,766 days.
All further statutory references will be to the Penal Code, unless otherwise noted.
The People now appeal and argue that the court imposed an unauthorized sentence by granting defendant custody credits he was not entitled to receive. Defendant disagrees, and also contends in his respondent's brief that, pursuant to Senate Bill No. 136 (Stats. 2019 Ch. 590, § 1), effective January 1, 2020, this court should order the trial court to strike the prior prison enhancement imposed under section 667.5, subdivision (b). The People concede the Senate Bill No. 136 issue. We agree with the People. Thus, we reverse and remand the matter for the court to recalculate defendant's custody credits and to resentence him in accordance with Senate Bill No. 136.
PROCEDURAL BACKGROUND
Case No. SWF1600584
On April 29, 2016, defendant was charged by felony complaint with battery by gassing upon a peace officer in a detention facility on March 30, 2016. (§ 243.9, subd. (a), count 1.) The complaint also alleged that he had a prior strike conviction. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) On May 2, 2016, the court declared a doubt as to his mental competence and suspended the proceedings. He was remanded to custody. His mental competency was restored on February 23, 2018.
Case No. BAF1601059
On August 9, 2016, defendant was charged by felony complaint with interfering with a peace officer (§ 69, count 1), felony battery on a peace officer (§ 243, subd. (c)(1), count 2), and misdemeanor battery on a peace officer (§ 243, subd. (b), count 3). All charged incidents occurred on May 19, 2016. Defendant was subsequently charged by information in this case on May 22, 2018, with two counts of battery by gassing upon a peace officer in a detention facility. (§ 243.9, subd. (a), counts 1 & 2.) The information also alleged that he had a prior prison conviction (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
Case No. SWF1707541
On August 3, 2017, an indictment was filed, accusing defendant of battery on a peace officer on May 19, 2016. (§ 243, subd. (c)(1).) Defendant filed a motion to dismiss the indictment under section 995, which the court denied.
The record on appeal does not appear to contain any other charging document, such as a felony complaint or information, with regard to this charge.
Case No. RIF1801959
While in custody awaiting trial on his other cases, defendant threw urine on an officer's face during a security check on March 23, 2018. He was thus charged by information, on June 27, 2018, with battery by gassing upon a peace officer in a detention facility. (§ 243.9, subd. (a), count 1.) The information also alleged that defendant had a prior prison conviction (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
Motion to Consolidate
On July 25, 2018, the People filed a motion to consolidate case Nos. SWF1600584, SWF1707541, BAF1601059, and RIF1801959. On August 9, 2018, the court held a hearing and granted the motion. The People filed a first amended information consolidating the charges under case No. SWF1600584.
On December 3, 2018, the People filed a second amended information, alleging felony battery on a peace officer (offense date of May 19, 2016) (§ 243, subd. (c)(1), count 1) and three counts of battery by gassing upon a peace officer in a detention facility (§ 243.9, subd. (a), counts 2-4, with offense date of May 19, 2016 on counts 2 and 3, and offense date of March 23, 2018 on count 4). The information also alleged that defendant had a prior prison conviction (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
Jury Trial and Sentencing
A jury found defendant guilty of count 4 and not guilty of count 2. As to count 1, the jury found him guilty of the lesser included offenses of assault (§ 240) and resisting a custodial officer (§ 148, subd. (a)). The jury failed to reach a verdict on count 3; thus, the court dismissed that count, pursuant to the People's motion. The court found the prior conviction allegations true.
The probation officer filed a report that showed defendant had been continuously in custody from April 29, 2016, through the current date of March 6, 2019, including the days he spent in the state hospital (mental health facility). Thus, the probation officer recommended the following for credit for time served: local time of 724 days, plus 724 days under section 4019, and 318 days in the state hospital, for a total of 1,766 days.
The court held a sentencing hearing on March 6, 2019. The People addressed the custody credits recommended by the probation officer and noted that the offense against the officer in count 4 occurred on March 23, 2018, which was 348 days ago. The People argued the credits on that count would run from the date of the offense, since defendant should not receive credit for time served before that offense. Thus, he was entitled to 696 days of credit (348 actual plus 348 conduct), with regard to count 4. The People later stated it erred in its calculation, and he was entitled to 697 days of credit. As to the misdemeanor counts, the People did not ask that they be run consecutive, but noted that defendant already had credit for time served since those offenses occurred over two years ago, in 2016. The People asked the court to impose the upper term of four years on count 4, plus a consecutive year on the prison prior.
Defense counsel argued that the probation officer correctly calculated the custody credits, noting that, where multiple cases are sentenced together, the court should allocate most of the credits to the case with the longest term of imprisonment to maximize the use of the available credits.
After researching the issue, the court stated it was going to rely on the probation officer's computations. Thus, it sentenced defendant to the upper term of four years on count 4, doubled pursuant to the prior strike conviction, plus one year on the prison prior, for a total of nine years in state prison. The court imposed one year for each of the misdemeanors, to run concurrent, and awarded 1,766 days of custody credits.
DISCUSSION
I. The Court Awarded Defendant Custody Credits Improperly
The People argue that the court erred when it granted defendant custody credits toward the term imposed on count 4, based on time spent in jail years before he even committed that offense. In other words, he was not entitled to credit against his term of imprisonment on count 4 for the time he spent in custody that was not attributable to that 2018 offense. The People contend that the court should have awarded him custody credits beginning on March 23, 2018, the date of the offense in count 4. Defendant argues that, since the court sentenced him to a "unitary sentence" on multiple cases, it was "free to determine which credits [were to be] attributed to which sentence imposed." We agree with the People.
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 . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order . . . shall be credited upon his or her term of imprisonment, . . ." Section 2900.5, subdivision (b), provides, in relevant part, 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." In other words, "[a] defendant is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485; see People v. Bruner (1995) 9 Cal.4th 1178, 1180 ["[A] defendant cannot obtain credit for confinement prior to his sentence if he cannot prove the conduct which led to the sentence was a dispositive, or 'but for,' cause of the presentence custody."].) "The crucial element of the statute is . . . whether the custody to which he has been subjected 'is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.' " (In re Watson (1977) 19 Cal.3d 646, 651 (Watson).)
In In re Ricky H. (1981) 30 Cal.3d 176 (Ricky H.), superseded by statute as stated in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396, two separate petitions were before the court alleging that the minor came within the provisions of Welfare and Institutions Code section 602. On November 8, 1978, the minor admitted that the first petition was true with respect to four counts of burglary. His detention, which commenced with his arrest on November 2, 1978, was ordered continued, pending a dispositional hearing set for November 21, 1978. However, on November 13, 1978, a new Welfare and Institutions Code section 602 petition was filed, alleging that the minor had committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)) and had escaped from juvenile hall (Pen. Code, § 871). (Ricky H., at p. 180.) On November 27, 1978, the minor admitted the allegations in the petition alleging the assault and the escape. (Ibid.) The juvenile court ordered him committed to the Youth Authority. It set a maximum confinement time of three years on the most severe charge, the assault with force likely to produce great bodily injury, ordered the burglary counts to run concurrently, and granted credit for precommitment time spent in juvenile hall. (Id. at p. 182.)
On appeal, the minor disputed the amount of credits awarded. However, the People argued that the minor was not entitled to any credit on his maximum term of physical confinement, since the assault did not occur until he escaped from juvenile hall, some time after his initial detention. (Ricky H., supra, 30 Cal.3d at p. 185.) The court agreed and explained that, pursuant to section 2900.5, credit for adults for presentence incarceration is limited to situations " 'where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.' " (Ricky H., at p. 185.) The court stated that "[the minor's] detention prior to the assault obviously was not attributable to proceedings related to the assault." (Ibid.) It concluded the following: "Credit for that period is thus not available against [the minor's] maximum term which was computed on the basis of the assault count in the second petition. [The minor] is entitled to credit for all time spent in custody from his initial detention date (Nov. 2, 1978) against any portion of his maximum term attributable to the burglaries which were the subject of the first petition. However, the juvenile court elected not to aggregate the period of physical confinement based on the counts admitted in the first petition. Rather, it set the maximum term with reference only to the assault charge, with the shorter burglary terms to run concurrently. Therefore, [the minor] is entitled to credit against the maximum term only for days of confinement which followed his detention on the assault petition." (Ricky H., supra, 30 Cal.3d at p. 185, fns. omitted.)
The question in the instant case is, pursuant to section 2900.5, whether the presentence custody " 'is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.' " (Watson, supra, 19 Cal.3d at p. 651; see § 2900.5, subd. (b).) Defendant was convicted in count 4 of battery by gassing an officer; the offense occurred on March 23, 2018. (§ 243.9, subd. (a).) As to count 1, he was convicted of the misdemeanor offenses of assault (§ 240) and resisting a custodial officer (§ 148, subd. (a)). The court sentenced him to four years on count 4, doubled pursuant to the prior strike, with the shorter one-year terms on the misdemeanors to run concurrently. It awarded him 1,766 days of custody credit against his sentences on counts 1 and 4. However, the 1,766 days of custody credit included credit for the days he had spent in custody on all four of his cases, from April 29, 2016 through March 6, 2019. Similar to the minor in Ricky H., defendant's time in custody prior to the battery by gassing on March 23, 2018, obviously was not attributable to proceedings related to count 4. (See Ricky H., supra, 30 Cal.3d at p. 185.) Defendant was entitled to credit against the term on count 4 only for the days of confinement that followed his charge on count 4. (Ibid.)
Defendant concedes that not all the custody credits awarded were attributable to the charge arising from count 4. However, he argues that "the sentence reflected a unitary sentence for which [he] was entitled to credits against the unitary sentence." He relies upon People v. Gonzalez (2006) 138 Cal.App.4th 246 (Gonzalez), in support of his claim. Gonzalez is distinguishable. In Gonzalez, the defendant was convicted of possession of a firearm by a felon, auto theft, and misdemeanor resisting a public officer (the auto theft case). At the time he committed those offenses, he was on probation for domestic violence (the DV case). (Id. at p. 248.) While awaiting trial in the auto theft case, he was charged with assaulting a fellow inmate (the assault case). The auto theft case went to trial, and the other two cases were resolved by plea. The three cases were consolidated for purposes of sentencing. The defendant remained in custody throughout the proceedings. (Ibid.)
At sentencing, the Gonzalez court awarded custody credits in the DV and assault cases, but not in the auto theft case. On appeal, the defendant contended the trial court erred in not awarding custody credits in the auto theft case and that some of the credits awarded in the DV case should be reallocated to the auto theft case. (Gonzalez, supra, 138 Cal.App.4th at p. 248.) The appellate court agreed, finding that his time in custody for the period of time at issue "was attributable to both the domestic violence case and the auto theft and gun case." (Id. at p. 252.) Thus, the trial court erred in awarding the credits for that period of incarceration only to the DV case. (Id. at p. 254.) The appellate court stated that, "once the few days of custody left to complete the sentence in the domestic violence action were credited to defendant, the remaining custodial time should have been characterized as solely attributable to the auto theft [] case and allocated accordingly. Otherwise the vast majority of the time served during the second period of incarceration would become 'dead time' that was not attributable to any case, . . ." (Ibid.) Accordingly, the appellate court concluded that the trial court erred when it failed to award the defendant any custody credits in the auto theft case. (Ibid.)
Gonzalez does not require that the court in the instant case grant defendant custody credit for the time served before he committed the crime in count 4. The Gonzalez court specifically pointed out that the period of incarceration at issue "was attributable to both the domestic violence case and the auto theft and gun case." (Gonzalez, supra, 138 Cal.App.4th at p. 252.) The same is not true here. Defendant's time in custody prior to March 23, 2018, was not attributable to the 2018 battery in count 4. Rather, it was attributable to batteries that occurred in 2016 to different officers. Any time he spent in custody prior to the commission of the battery in count 4 was not attributable to that case, and the court should not have applied those custody credits to the term on count 4. (See § 2900.5, subd. (b).)
We note defendant's claim that "where multiple cases are sentenced and credits earned in multiple cases, the court is free to determine which credits are to be attributed to which sentence imposed." Under this construction, he was entitled to have all the custody credits awarded to his total sentence since his cases were consolidated for purposes of trial. However, if the People had not chosen to consolidate the four cases, defendant would not have been entitled to the same application of the custody credits. As the People point out, this interpretation of section 2900.5 would lead to absurd results.
We conclude that defendant was entitled to credit against the term on count 4 only for the days of confinement which followed his charge on that count. Thus, the matter should be remanded for the recalculation of custody credits.
II. The Matter Should Be Remanded for the Trial Court to Apply Senate Bill No. 136
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill No. 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served, unless the prior prison term involves a conviction of a sexually violent offense. (§ 667.5, subd. (b).) The statute is retroactive and applies to cases not yet final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 745; see People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.)
In his respondent's brief, defendant contends the one-year term imposed against him under former section 667.5, subdivision (b), must be stricken pursuant to the amendment to section 667.5, subdivision (b), by Senate Bill No. 136. He requests the matter to be remanded for the trial court to strike the section 667.5, subdivision (b) enhancement and resentence him. The People concede the issue, since the prior prison term here did not involve convictions of a sexually violent offense. (§ 667.5, subd. (b).)
DISPOSITION
The judgment is affirmed with respect to the conviction but reversed with respect to the sentence. The matter is remanded to the trial court with directions to strike the prior prison enhancement imposed pursuant to section 667.5, subdivision (b). The court is also directed to recalculate defendant's custody credits awarding him custody credits on count 4 beginning on March 23, 2019, the date of that offense.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. RAPHAEL
J.