Opinion
E065528 E065854
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER PATRICK VARGAS, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton, Deputy Attorney General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. FVI1501646, FVI1401784) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed as modified; affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton, Deputy Attorney General, for Plaintiff and Respondent.
I
INTRODUCTION
Following a jury trial in case No. FVI1501646, defendant and appellant Christopher Patrick Vargas was convicted of first degree burglary (Pen. Code, § 459) and attempted first degree burglary (§§ 664/459). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and three prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 10 years 4 months in state prison with 15 percent limited credit for time served. Defendant's sole contention on appeal in this case, case No. E065528, is that the trial court erred in limiting his presentence conduct credits to 15 percent pursuant to section 2933.1. We agree and modify defendant's presentence custody credits accordingly.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant has also filed an appeal in case No. FVI1401784 after the trial court revoked and terminated his probation in that matter (case No. E065854 on appeal). We ordered case No. E065528 consolidated with case No. E065854 for purposes of briefing, oral argument, and decision. Since defendant has presented no issues on appeal in case No. E065854, we affirm the judgment.
II
FACTUAL BACKGROUND
On June 30, 2015, Latesha H. was at her home with her children watching a movie when someone rang the front doorbell. Her daughter looked out a bedroom window and saw a man mumbling, yelling, and using profanities. Latesha looked through the peephole of the front door and saw the man's hand on the bedroom window next to the front door. The subject was a white male wearing a white shirt and "brownish" cargo shorts. Her daughter also noticed that the man had a tattoo on his leg. The man continued yelling and Latesha heard the bedroom window break. Latesha got her handgun and called the police. The man left when Latesha yelled at him through the front door.
San Bernardino County Sheriff's Deputy Mahoney responded to Latesha's house. While Deputy Mahoney was at Latesha's house, the sheriff's department received a call that someone was breaking into another house in the neighborhood. Deputy Awad responded to the other house and found a broken front window next to the front door. Deputy Awad also heard noises and movement coming from inside the house.
After backup arrived, Deputy Awad entered the house through the broken window and began searching the house. Deputy Awad found broken glass all over a bedroom and a closet door on a bed. As deputies continued to search the house, Deputy Awad heard movement from down a hallway and found defendant rummaging through clothing in the master bedroom closet. Defendant was wearing beige cargo pants and had tattoos on his shins. He had no shirt on.
With both hands on his service weapon, Deputy Awad announced his presence and ordered defendant to show his hands. Defendant did not comply but instead kept reaching for something. Deputy Awad kicked defendant in the head and defendant fell back, revealing his hands. Deputy Awad took defendant into custody. The homeowner's 12-gauge shotgun was in or near the closet where defendant was found.
The occupant of the residence, Elizabeth C., arrived as Deputy Awad escorted defendant from her home. Subsequently, Deputy Mahoney drove Latesha to Elizabeth's residence where Latesha identified defendant as the man who tried to break into her house.
III
DISCUSSION
Defendant argues that the trial court improperly limited his custody credits to 15 percent pursuant to section 2933.1 because there was no evidence to show anyone was present in the house during the commission of the burglary prior to his discovery and arrest in Elizabeth's home. The People maintain the trial court correctly limited defendant's custody credits to 15 percent because there were persons, namely the responding deputies, present in Elizabeth's residence during the burglary, and therefore, the burglary qualified as a violent felony within the meaning of section 667.5, subdivision (c). However, the People offer no case authority to support this argument. As discussed in more detail below, the People's argument regarding the presence of the deputies lacks merit.
Section 2933.1, subdivision (a), provides: "Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." Section 2933.1, subdivision (c), states: "Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)." Thus, both worktime and conduct credits are restricted to 15 percent for persons who commit offenses listed in section 667.5, subdivision (c). (People v. Fong (2013) 217 Cal.App.4th 263, 266.)
Section 4019 authorizes two days of good time/work time credit for each completed four-day block of actual custody time. (§ 4019, subd. (f) ["It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody."].)
Burglary of an inhabited dwelling house constitutes first degree burglary. (§§ 459, 460.) Any first degree burglary is defined as a serious felony. (§ 1192.7, subd. (c)(18).) A first degree burglary is defined as a violent felony only when "it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).) Subdivision (c)(21) was added to section 667.5 in 2000 as part of Proposition 21 (the Gang Violence and Juvenile Crime Prevention Initiative, effective March 8, 2000). (See John L. v. Superior Court (2004) 33 Cal.4th 158, 165.) When a defendant has been convicted of a violent felony, section 2933.1 limits his or her conduct credits to 15 percent of the actual period of confinement. (§ 2933.1, subd. (a); People v. Torres (2011) 198 Cal.App.4th 1131, 1151; People v. Singleton (2007) 155 Cal.App.4th 1332, 1336-1337 (Singleton); People v. Garcia (2004) 121 Cal.App.4th 271, 274 (Garcia).)
Section 667.5, subdivision (c)(21), "elevates a first degree burglary (§ 460) to the status of a violent felony if a person other than an accomplice is 'present in the residence' during the [commission of the] burglary. [Citation.] A defendant convicted of a violent felony is limited [with regard] to the amount of presentence and postsentence custody credits that can be earned. [Citation.] Thus, a defendant convicted of a serious felony, such as first degree burglary of an inhabited dwelling house, can earn good time/work time credits to reduce his or her sentence up to 50 percent (§ 4019; People v. Heard (1993) 18 Cal.App.4th 1025 . . . ), but a defendant convicted of a violent felony can earn a maximum of 15 percent in custody credits, thereby ensuring that he or she serves at least 85 percent of the sentence imposed. (§ 2933.1, . . . ; [citation].)" (Singleton, supra, 155 Cal.App.4th at pp. 1336-1337.)
The 15 percent credit limitation does not apply to a person convicted of first degree residential burglary unless it is pleaded and proven that the residence was occupied by a nonaccomplice at the time of the burglary. The court in People v. Fitzgerald (1997) 59 Cal.App.4th 932 (Fitzgerald), held that an information charging the defendant with violent felonies gave him sufficient notice that, if convicted, section 2933.1 would restrict his presentence conduct credits to 15 percent of the maximum otherwise permitted. The People were not required to plead the effect that a conviction would have on credits. (Fitzgerald, at pp. 936-937.) "The pleading and proof requirements of section 667.5, subdivision (c) safeguard the defendant's right to notice of the facts the prosecution intends to prove as well as the due process requirement that the People actually prove the facts required either for imposing an increased penalty or for making decisions regarding the severity of the sentence within the prescribed range. [Citations.] As with other sentencing facts, however, proof that a first degree burglary falls within section 667.5, subdivision (c)(21), is properly presented to the sentencing court." (Garcia, supra, 121 Cal.App.4th at p. 279.)
In this case, as to count 1 for residential burglary, the People did not plead the facts the prosecution intended to prove for imposing "an increased penalty or for making decisions regarding the severity of the sentence." (Garcia, supra, 121 Cal.App.4th at p. 279.) The information, as to count 1, did not provide defendant with sufficient notice that, if convicted, section 2933.1 would restrict defendant's presentence conduct credits to 15 percent of the maximum otherwise permitted. (Fitzgerald, supra, 59 Cal.App.4th at p. 936-937.) Although the information alleged that another person, other than an accomplice, was present in the residence within the meaning of section 667.5, subdivision (c)(21), in the commission of count 2 for the attempted residential burglary, the information provided no such notice as to count 1. Case law is settled that subdivision (c)(21) of section 667.5 does not apply to attempted crimes. (People v. Ibarra (1982) 134 Cal.App.3d 413, 425.) Thus, defendant had insufficient notice the 15 percent credit limitation would apply to count 1.
" '[T]he purpose of the charging document is to provide the defendant with notice of the offense charged. [Citation.] The charges thus must contain in substance a statement that the accused has committed some public offense, and may be phrased in the words of the enactment describing the offense or in any other words sufficient to afford notice to the accused of the offense charged, so that he or she may have a reasonable opportunity to prepare and present a defense.' " (Fitzgerald, supra, 59 Cal.App.4th at p. 936.) The information as to count 1 did not identify the conduct, as well as, the specific statutory provisions the prosecution contended were at issue, such as the burglary alleged in count 1 was a violent felony due to the presence of another person, other than an accomplice. Further, the transcript of the preliminary hearing does not detail the conduct of another person being present during the commission of count 1. The prosecution presented no evidence that another person, other than an accomplice, was present in the residence at the time defendant committed count 1. In fact, the prosecutor did not object at the preliminary hearing, or clarify for the court the charge in count 1, when defense counsel pointed out that defendant was charged with two counts, "First count is First Degree Residential Burglary. Second is Attempted First Degree Residential Burglary with a person present." After hearing testimony and argument at the preliminary hearing, the trial court ordered defendant "to answer for the crimes shown by the testimony at this preliminary hearing" for the crimes of "attempted burglary as charged in Count 2" and "burglary as charged in Count 1."
At the sentencing hearing, the trial court did not specifically find section 667.5, subdivision (c)(21), applied as to count 1 when it limited defendant's custody credits to 15 percent. Rather, it appears the trial court was confused in awarding custody credits and impliedly found section 667.5, subdivision (c)(21), applied as to count 1. The court stated: "All right. And 50 percent of 245 should be—which would mean 282 days total credits. Anybody disagree with my math? You should check it because I'm horrible. Well, as of January 25th we had 210 days. So we're 35 days plus that. So the total is 245. Fifteen percent rounded off is 37, for total of 282." The clerk thereafter inquired, "What type of credits are those?" The court replied, "Credits are pursuant to Penal Code Section 2933.1."
As previously noted, section 667.5, subdivision (c), does not apply to count 2 for attempted first degree burglary, as that crime is not listed as a violent felony in section 667.5. (See People v. Reed (2005) 129 Cal.App.4th 1281, 1284-1285 & fn. 1 [except for attempted murder, an attempt to commit a crime listed in section 667.5, subdivision (c), is not a violent felony].)
"We agree that, just as the trial court properly determines as a matter of state law whether a prior conviction qualifies as a strike [citation], so too determining whether a defendant's current conviction for first degree burglary is a violent felony is properly part of the trial court's traditional sentencing function." (Garcia, supra, 121 Cal.App.4th at p. 278, citing People v. Kelii (1999) 21 Cal.4th 452, 457-458.) Here, the trial court erred in impliedly finding section 667.5, subdivision (c)(21), applies to limit defendant's presentence conduct credits pursuant to section 2933.1 under the circumstances of this case. The record in this case is clear that defendant was not provided with notice the burglary alleged in count 1 was a violent felony within the meaning of section 667.5, subdivision (c)(21). The People did not plead and prove the 15 percent credit limitation applied to count 1 in that the residence was occupied by a nonaccomplice at the time of the burglary. Because the People did not allege any person was present during the commission of the burglary in count 1, section 667.5, subdivision (c)(21), does not apply to that count. (Garcia, supra, 121 Cal.App.4th at pp. 274-275.)
Because we find the People did not plead and prove a person was present during the burglary in count 1 or provide defendant with sufficient notice the burglary alleged in count 1 was a violent felony within the meaning of section 667.5, subdivision (c), to limit defendant's credit limitation to 15 percent, we need not decide whether a responding officer qualifies as to "another person, other than an accomplice, was present" under section 667.5, subdivision (c)(21). --------
As previously explained, defendant's presentence credits should have been calculated under section 4019, rather than section 2933.1. Under section 4019, subdivision (f), "a term of four days will be deemed to have been served for every two days spent in actual custody." Defendant was arrested on June 30, 2015, and sentenced on February 19, 2016. As such, defendant was entitled to 235 days of actual custody credits pursuant to section 2900.5, and 234 days of conduct credits pursuant to section 4019, for a total of 469 days of presentence custody credits.
We have the inherent power to correct clerical errors in abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct preparation of an amended abstract of judgment and the court's minute order of the February 19, 2016 sentencing hearing reflecting an award of 234 days of conduct credit under section 4019. Based on the foregoing, we modify the judgment in case No. E065528.
IV
DISPOSITION
In case No. E065528, the judgment is modified to award defendant a total of 469 days of presentence custody credits, consisting of 235 actual days and 234 days of conduct credit pursuant to section 4019. The superior court clerk is directed to prepare a new minute order and amended abstract of judgment reflecting the custody credit modifications. The superior court clerk is then directed to forward a certified copy of the new minute order and amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed as modified.
In case No. E065854, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.