Opinion
C090229
10-25-2021
The PEOPLE, Plaintiff and Respondent, v. Ryan Neal SHROPSHIRE et al., Defendants and Appellants.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant Ryan Neal Shropshire. Michael C. Sampson, Monterey, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Edward Roberts. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Heather S. Gimle, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts II-IX.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant Ryan Neal Shropshire.
Michael C. Sampson, Monterey, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Edward Roberts.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Heather S. Gimle, Deputy Attorney General, for Plaintiff and Respondent.
Duarte, J.
Defendants Ryan Neil Shropshire and Bryan Edward Roberts appeal from a judgment of conviction in El Dorado County following a jury trial. Roberts was convicted of multiple counts, including two counts of receiving stolen property, unlawful possession of methamphetamine, unlawful possession of ammunition, two counts of receiving a stolen motor vehicle, possession of a deadly weapon, and three counts of possession of a firearm by a felon. Shropshire was convicted of manufacturing concentrated cannabis.
Defendants raise numerous issues on appeal. In the published portion of our opinion, we agree with Shropshire that he is entitled to additional custody credits. Shropshire was serving a two-year sentence in a separate case from Placer County while he awaited trial in the instant case, and the sentence in the Placer County case was reduced to a misdemeanor before Shropshire was sentenced in the instant case. Because he had accrued more custody credits than was necessary to serve the sentence in the Placer County case, defendant was entitled to apply those excess credits to his sentence in the instant case, as we will explain.
In the unpublished portion of our opinion, we reject Roberts’ and Shropshire's challenges to a search warrant authorizing a search for stolen property. We also disagree with Roberts’ remaining contentions except that one of his convictions for unlawful possession of a firearm must be stayed pursuant to Penal Code section 654, and reject Shropshire's remaining claims except that a one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b) should be stricken.
Further undesignated statutory references are to the Penal Code.
Accordingly, we will modify the judgments as to both defendants and affirm the judgments as modified. FACTS AND PROCEEDINGS
Because some of defendants’ claims require close examination of the evidence presented at trial, we recite the facts in some detail where necessary. We omit other facts where their recitation is not necessary to decide the claims on appeal.
September 17, 2012, Search of Dewer Road Property
Deputy Terri Cissna was a deputy sheriff with the El Dorado County Sheriff's Department. On September 17, 2012, she executed a search warrant for marijuana at a property on Dewer Road in Garden Valley (Dewer Road property). The property was owned by Roberts and his wife, and occupied by his family. Roberts was not present when the warrant was served. Cissna met Shropshire, who lived on the property. Cissna found two shotguns--one of which had a barrel shorter than lawfully permitted--and one rifle on a shelf in the master bedroom, along with indicia of Roberts’ occupancy of the room.
On October 13, 2012, after numerous attempts to contact Roberts, Cissna pulled him over in order to interview him. Roberts said that with the exception of one, the guns belonged to someone else.
Thefts from the Bear Creek Road Property
Kurtis H. lived on a property on Bear Creek Road in El Dorado County (Bear Creek Road property) from June 2012 to June 2013. After moving from the Bear Creek Road property in June 2013, he left items belonging to Brad H., the owner of the real property and personal property thereon; among the items were two ATVs and other equipment, including generators and air compressors. The generators and air compressors were stored in a garage shop, which was secured with locking doors and bolts in the bay doors.
After moving from the Bear Creek Road property, Kurtis continued to check on it. At the end of November 2013, he observed the shop's window screen was on the ground, and he realized that property was missing, including two air compressors, two generators, a small vehicle ramp for all-terrain vehicles (ATVs), and two ATVs. The property's front gate was still locked, but there were ATV trails leading from the property; one led to the Dewer Road property.
Kurtis testified at trial that Charles S. was the previous owner of the property, although he acknowledged that he told police that Charles was the owner of the property at the time of the theft. The confusion was caused by the fact that Charles was in the process of selling the property to Brad, and Kurtis was not sure if the transaction had been completed at the time of the theft.
Nevertheless, Kurtis communicated with Brad in November. Kurtis obtained photos and vehicle identification numbers (VIN) provided by the owner of the property and created flyers in an attempt to find the property. On cross-examination, Kurtis testified he might have obtained the photographs for the flyers from Charles, although he did not contact Charles after the theft.
Kurtis did not know if Charles did something with the property, but he testified that Charles lived in Las Vegas and had not "been back around for a while." Kurtis did not know Roberts or Shropshire, and he did not give them permission to take the property. Neither Brad nor Charles testified at trial.
Around November 24 and 25, 2013, Deputy Cissna received the reward posters for the property that Kurtis reported stolen. She contacted Kurtis, who explained that the items had been stolen from the Bear Creek Road property.
Diane B. lived near the Bear Creek Road property in 2014, and she knew Kurtis and was familiar with Charles. Diane knew that Kurtis moved off the property--she thought in October or November--and that it was unoccupied. She occasionally went to the property and observed that "[t]hings were moved around all the time. The doors left open on the house and everything." She observed that things were missing from the garage, but she could not discern if anything was missing from the shop because it was so messy. Diane attempted to contact Charles, but the record does not reflect that she was able to reach him.
Diane was familiar with Roberts and Shropshire, whom she knew as "Chevy." She had a surveillance camera on her house, and she could see what was happening in the neighborhood. She told Deputy Cissna that she had observed both Roberts and Shropshire walking "alongside the gate" in October. She did not see them enter the Bear Creek Road property because they went out of view of the camera, but they were going in that direction.
Diane frequently heard ATVs on the property during the period of time it was unoccupied. She once saw Roberts riding an ATV. Roberts once asked Diane if the ATVs bothered her. When Diane heard the ATVs, she noticed that no one came through the front gate of the Bear Creek Road property, which was visible on her camera.
February 17, 2014, Search of Dewer Road
On February 17, 2014, Deputy Cissna executed a search warrant related to stolen property at the Dewer Road property. She found the two ATVs that had been reported stolen from the Bear Creek Property and an air compressor. She also discovered an illegally graded access trail connecting the Dewer Road property to the Bear Creek Road property. She found the ATVs in a drainage ditch on the ATV trail "a couple hundred yards south of the main house on Dewer," although she may have testified at the preliminary hearing that the ATVs were at least 300 yards from the residence, and she was not certain the ATVs were located on the Dewer Road property. She hypothesized that one ATV had become stuck, and the other one became stuck attempting to rescue the first. One had a broken tire or wheel.
Deputy Cissna found a travel trailer on the Dewer Road property in close proximity to the main house; the trailer had various items in it, including nine boxes of ammunition that looked "newer-ish." She also found fired shotgun shells a short distance behind the Roberts’ residence. Some of the shells were "somewhat dirty to indicate they'd been on the ground for a little bit, while others are relatively clean, indicating they have not been exposed to the weather for very long." She searched Roberts’ truck and discovered a bag containing a small amount of methamphetamine, and a jar of concentrated cannabis product.
Deputy Cissna and another deputy searched a recreational vehicle (RV) on the property. The RV contained indicia related only to Shropshire. Inside, the deputies found equipment for producing concentrated cannabis, and marijuana and concentrated cannabis residue and product.
During an additional search conducted on another property in Grass Valley on February 20, 2014, deputies discovered, inter alia, generators, air compressors, and aluminum ramps that had been reported stolen from the Bear Creek Road property. Kurtis provided identifying marks and numbers for the items, identifying them as stolen.
Charges, Verdicts, and Sentences
The jury found Roberts guilty of receiving stolen property, to wit, the ATVs and the air compressors, generators, and ramps ( Pen. Code, § 496, subd. (a) ; counts 1 & 8); possession of methamphetamine ( Health & Saf. Code, § 11377, subd. (a) ; count 3); unlawful possession of ammunition ( Pen. Code, § 30305, subd. (a)(1) ; count 5); receiving a stolen motor vehicle ( id. , § 496d, subd. (a) ; counts 10 & 11); possession of a deadly weapon (id. , § 33215 ; count 12); and possession of a firearm by a felon (id. , § 29800, subd. (a)(1) ; counts 13-15). Roberts admitted that he was out on bail at the time he committed the acts charged in counts 1, 3, and 5.
The trial court sentenced Roberts to an aggregate term of four years in prison: the midterm of two years on count 1, and a consecutive two-year sentence on the on-bail enhancement. The court imposed a concurrent 180-day sentence on count 3, and a concurrent two-year sentence on all other counts.
The jury found Shropshire guilty of manufacturing concentrated cannabis. ( Health & Saf. Code, § 11379.6, subd. (a) ; count 2.) Shropshire admitted one prior prison term allegation ( Pen. Code, § 667.5, subd. (b) ), and the trial court sentenced him to an aggregate term of eight years of incarceration: an aggravated term of seven years on count 2, plus one year for the prior prison term. The court directed that five years of the term be served in county jail (id. , § 1170, subd. (h)(2) ) with the balance served under mandatory supervision.
Each defendant timely appealed. The case was fully briefed in May 2021, and deemed submitted after waiver of oral argument in September 2021.
DISCUSSION
I
Shropshire's Credits
Shropshire contends that he is entitled to 377 days of presentence credits for time served. He contends that he is entitled to credits he earned while serving a two-year sentence on another case, the sentence of which was subsequently reduced to a misdemeanor. Because he earned credits while serving that sentence that exceeded the amount required to fulfill that sentence as reduced, he contends the excess credits should be applied to the instant case. As we will explain, we agree.
A. Background
On February 17, 2014, Shropshire was arrested in Placer County, and two days later he was charged in Placer County Superior Court case No. 62-128342 with possession of concentrated cannabis, a felony. ( Health & Saf. Code, § 11357.) He was jailed in Placer County from February 17, 2014, until June 23, 2014; he was transferred to the El Dorado County Jail on June 24, 2014.
Shropshire's probation report states that he was jailed in Placer County from February 21, 2014, to June 23, 2014. However, a printout from the Placer County Sheriff, attached to Shropshire's supplemental points and authorities in support of his request for additional credits, states that Shropshire was jailed in Placer County from February 17.
On March 11, 2014, Shropshire was charged in the instant case, and an arrest warrant was issued by El Dorado County Superior Court on March 17.
On August 15, 2014, Shropshire was sentenced to two years in the Placer County case. On August 26, 2014, the El Dorado County Superior Court received a demand pursuant to section 1381, and Shropshire was arraigned on September 26, 2014, while in the custody of the El Dorado County Sheriff's Department.
Shropshire remained in custody in the El Dorado County Jail until November 24, 2014, when he posted bond. He was returned to jail in Placer County on November 26, 2014, where he remained until December 11, 2014, when his felony conviction in the Placer County case was reduced to a misdemeanor with a maximum term of confinement of 364 days ( § 18.5, subd. (a) ); he was awarded credit for 298 actual days.
When Shropshire was sentenced in the instant case on August 12, 2019, the court awarded him 91 actual days of credit--he was in custody in the El Dorado County Jail from March 28, 2018, to April 19, 2018, and from June 6, 2019, to August 12, 2019--plus 90 conduct days of credit, for a total of 181 days. Shropshire's probation report asserted that he was not entitled to credits from the time he spent in custody before his Placer County conviction was reduced to a misdemeanor because he was serving the two-year sentence in the Placer County case at that time.
Shropshire filed a motion seeking additional credits. He observed that he had accrued 298 actual days--596 credit days--in custody, and because he was resentenced to a maximum sentence of 364 days, there were 232 custody days, or 116 actual days, during which he was only legally held on the El Dorado County case. Accordingly, Shropshire argued that those excess credit days should be attributed to his sentence in the instant case. The People filed a brief in opposition of Shropshire's request for additional credits. Shropshire then filed supplemental points and authorities in support of his motion. On November 8, 2019, the trial court denied Shropshire's motion. B. Legal Background
This reflects the number of days between February 17, 2014, and December 11, 2014.
Section 2900.5, subdivision (b) requires that presentence custody 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." As our high court recognized long ago, this language means that "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." ( In re Rojas (1979) 23 Cal.3d 152, 155-156, 151 Cal.Rptr. 649, 588 P.2d 789.) This is so because the defendant would have been in custody serving the earlier sentence had there been no other matters pending; thus, the proceedings in any later pending case have no effect upon the defendant's liberty. ( Ibid . )
Subsequently, our Supreme Court has held: "[A] period of time previously credited against a sentence for unrelated offenses cannot be deemed ‘attributable to proceedings’ resulting in a later-imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence. In other words, duplicative credits against separately imposed concurrent sentences for unrelated offenses will be granted only on a showing of strict causation." ( In re Joyner (1989) 48 Cal.3d 487, 489, 256 Cal.Rptr. 785, 769 P.2d 967 ( Joyner ).)
In People v. Bruner (1995) 9 Cal.4th 1178, at pages 1180 to 1181, 40 Cal.Rptr.2d 534, 892 P.2d 1277 ( Bruner ), the court applied Joyner : "[W]hen presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding, the strict causation rules of Joyner should apply. Here, defendant received credit for all presentence custody in his parole revocation proceeding, and he has failed to demonstrate that but for the cocaine possession leading to his current sentence, he would have been free, or at least bailable, during that presentence period. Hence, he is not entitled to duplicative credit against the current sentence."
However, subsequent decisions have recognized that the "strict causation" rule in Joyner and Bruner does not apply when the defendant is not seeking duplicate credits. For example, in In re Marquez (2003) 30 Cal.4th 14, 131 Cal.Rptr.2d 911, 65 P.3d 403 ( Marquez ), the defendant was arrested in Monterey County and was released on bail. While on bail, he was arrested in Santa Cruz County for an unrelated crime, and Monterey placed a hold on him. He was convicted in the Santa Cruz case, and the trial court gave him credit for the time he spent in custody from the date of his Santa Cruz arrest to the date he was sentenced in that case. The defendant was subsequently convicted in the Monterey case, and the trial court awarded him credit for the time he spent in custody after the Monterey County hold and before he was sentenced in the Santa Cruz case, but not for the time after he was sentenced in the Santa Cruz case but before he was sentenced in Monterey County. Our Supreme Court concluded that he was entitled to the credits. The court reasoned that when Monterey placed a hold on the defendant subsequent to his arrest in the Santa Cruz case, his custody became attributable to the pending criminal charges in both Santa Cruz and Monterey. ( Marquez , supra , 30 Cal.4th at p. 20, 131 Cal.Rptr.2d 911, 65 P.3d 403.) Had Santa Cruz dropped its charges at that time, the subsequent period in custody would have been attributable solely to the Monterey hold. ( Ibid . ) The court held that once Santa Cruz dismissed its charges, all custody following Monterey's hold, including the period between the defendant's sentencing in Santa Cruz and his sentencing in Monterey, became attributable to the Monterey case. ( Id . at p. 20, 131 Cal.Rptr.2d 911, 65 P.3d 403.)
The court observed: "To deny [the defendant] credit for his time spent in custody between December 11, 1991, and April 2, 1992, would render this period ‘dead time,’ that is, time spent in custody for which he receives no benefit. Sometimes this result is unavoidable. For example, had [the defendant'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, 131 Cal.Rptr.2d 911, 65 P.3d 403.)
The Marquez court further recognized that, once the Santa Cruz conviction was reversed, the defendant was "returned to a situation indistinguishable from that of a defendant who had been charged in that county, but never tried." ( Marquez , supra , 30 Cal.4th at p. 22, 131 Cal.Rptr.2d 911, 65 P.3d 403.) Accordingly, when the Santa Cruz charges were dismissed, "the ‘custody to be credited’ (i.e., the time [the defendant] had spent in local custody pursuant to the Monterey County hold, both before and after the date of the Santa Cruz County sentencing) became ‘attributable [solely] to proceedings related to the same conduct for which the defendant has been convicted’ ( § 2900.5 [, subd.] (b)), i.e., the proceedings in this case. The Monterey County Superior Court thus properly awarded [the defendant] credit for his custody from the time of the hold until the date of his sentencing in Santa Cruz County. It erred, however, in failing to award him credit for his custody following his sentencing in Santa Cruz County, up to and including the date of his sentencing in Monterey County." ( Id . at pp. 22-23, 131 Cal.Rptr.2d 911, 65 P.3d 403.) The Attorney General in Marquez argued that application of the rule of "strict causation" precluded an award of additional credits in that case. Disagreeing, the court explained: "This argument is misplaced. The requirement of ‘strict causation,’ on which this court relied in Bruner , supra , 9 Cal.4th 1178, 40 Cal.Rptr.2d 534, 892 P.2d 1277, and Joyner , supra , 48 Cal.3d 487, 256 Cal.Rptr. 785, 769 P.2d 967, is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant. Here, because the Santa Cruz County charges have been dismissed, no possibility of a windfall (in the form of double credit) to [the defendant] exists. Unlike in Bruner and Joyner , the choice is not between awarding credit once or awarding it twice. The choice is instead between granting [the defendant] credit once for his time in custody between December 11, 1991, and April 2, 1992, or granting him no credit at all for this period of local custody." ( Marquez , supra , 30 Cal.4th at p. 23, 131 Cal.Rptr.2d 911, 65 P.3d 403.)
In People v. Torres (2012) 212 Cal.App.4th 440, 150 Cal.Rptr.3d 908, the defendant pleaded guilty to an offense, and the trial court imposed a sentence that included reduction of a prior sentence the defendant was serving at that time. The sentence reduction meant that the prior sentence was effectively served several months earlier, but the trial court denied presentence credits to the current sentence. The appellate court concluded that once the defendant's newly-reduced term had been fulfilled, any time spent after fulfilling that sentence should have been credited to the current sentence. ( Id. at p. 445, 150 Cal.Rptr.3d 908.) The court stated: "Here, the period of [the defendant's] custody between his sentencing in Sonoma and his sentencing in Mendocino (June 17, 2011, to Nov. 4, 2011) is attributable to both the Sonoma County case and the Mendocino County cases. Following the reasoning of Bruner and Joyner , it appears the trial court concluded that section 2900.5 subdivision (b) ’s prohibition applied to deny [the defendant] credits for this period and thus determined that any credits earned during it could only apply to the Sonoma County sentence. However, because the court reduced [the defendant's] Sonoma County sentence from a two-year term to an eight-month term, and [the defendant] had previously been awarded 366 days of credit toward that sentence, [the defendant's] Sonoma County sentence was completed well before he was sentenced in Mendocino County. [¶] ... Thus, once the modified Sonoma County sentence was fulfilled, the remaining custodial time was and should have been ‘characterized as solely attributable’ to the controlling Mendocino case and allocated accordingly." ( Id. at p. 447, 150 Cal.Rptr.3d 908.)
C. Analysis
On appeal, Shropshire contends that he was legally held on the Placer County case for only 182 actual days, based on the fact that he was resentenced to a misdemeanor, which carried a maximum sentence of 364 days. Accordingly, he contends that he fulfilled his sentence on August 17, after which his remaining custodial time was solely attributable to the instant case.
We agree. Shropshire's time in custody from February 17 to December 11 was attributable to the Placer County case. But as Marquez instructs, Shropshire's time in custody from March 11--when the El Dorado Superior Court issued an arrest warrant (see Joyner , supra , 48 Cal.3d at p. 489, fn. 2, 256 Cal.Rptr. 785, 769 P.2d 967 )--to November 24--when he posted bond in the El Dorado County case--was also attributable to that case. Like the Santa Cruz case in Marquez , had Shropshire's Placer County case not been reduced to a misdemeanor, each of the days from February 17 to December 11--298 actual days in custody--would have been attributed to the Placer County case in fulfilling his two-year sentence.
However, when the Placer County case was reduced to a misdemeanor, the custody time in excess of that required to fulfill the Placer County case was no longer required to be attributed to the Placer County case, and was available to be attributed to the El Dorado County case. As Marquez recognized, to deny Shropshire credit for his time spent in custody between August 18 and November 24 would render that period "dead time," or time spent in custody for which Shropshire would receive no benefit. ( Marquez , supra , 30 Cal.4th at pp. 20-21, 131 Cal.Rptr.2d 911, 65 P.3d 403.) While "dead time" may be unavoidable in some circumstances, it is not unavoidable here because Shropshire was being held on the El Dorado County case from August 18 to November 24.
In response, the Attorney General relies exclusively on the "strict causation" rule stated in Joyner . But as the court stated in Marquez and as relevant here, the application of the rule of "strict causation" is not applicable where there is no risk of a windfall for Shropshire. ( Marquez , supra , 30 Cal.4th at p. 23, 131 Cal.Rptr.2d 911, 65 P.3d 403.) As we have discussed, there is no dispute that Shropshire may not--nor is he seeking to--apply his custody credits to two separate sentences. Rather, "[t]he choice is instead between granting [the defendant] credit once for his time in custody between [August 19, 2014, and November 24, 2014,] or granting him no credit at all for this period of local custody." ( Marquez , supra , 30 Cal.4th at p. 23, 131 Cal.Rptr.2d 911, 65 P.3d 403.) Accordingly, we conclude that Shropshire must be awarded credit against the sentence in the instant case for the time he spent in custody from August 18 to November 24, 2014.
See footnote *, ante .
The judgments are modified to strike Shropshire's one-year prior prison term enhancement ( § 667.5, subd. (b) ) and to award him presentence credit for his time in custody following the completion of his reduced misdemeanor sentence in Placer County case No. 62-128342, and to stay Roberts’ sentence on count 13 ( § 654 ). As modified, the judgments are affirmed. The trial court is directed to prepare an amended abstract of judgment for each defendant reflecting these modifications and to forward a certified copy thereof to the relevant authorities.
We concur:
Robie, Acting P. J.
Mauro, J.