Filed 8/7/17 P. v. Dillon CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM MAURICE DILLON,
Defendant and Appellant.

A146412, A148313

(San Mateo County
Super. Ct. No. SC079816A)


William Maurice Dillon appeals from a judgment of conviction and sentence imposed after he entered a negotiated plea of no contest. He contends the sentence he received in this case should run concurrently to a preexisting sentence in a prior case because the court did not adequately specify that the sentence was to run consecutively. (Pen. Code, § 669.) He further contends that his presentence custody credits should be recalculated. We will modify the judgment with respect to the custody credits and, as so modified, affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In January 2014, Dillon was charged in San Mateo County Superior Court with pimping (Pen. Code, § 266h, subd. (a)) and pandering (§ 266i, subd. (A)(2)). It was also alleged that he served three prior prison terms (§ 667.5, subd. (b)).
In September 2014, Dillon entered a plea of no contest to the pimping charge, with an agreement that he would receive a three-year prison term. The trial court granted the prosecution’s motion to strike the remaining charge and allegations.
Dillon did not appear for his sentencing in December 2014, and a warrant issued. He was produced in court on July 28, 2015, pursuant to an order for his return from North Kern State Prison, where he was being held.
A probation officer’s pre-sentence report explained that Dillon was serving a two-year, eight-month prison term that had been imposed in May 2015 in Santa Clara County Superior Court for convictions under section 487, subdivision (c) and section 245, subdivision (a)(4). The two-year, eight-month sentence was comprised of a two-year term on the section 487 conviction and a consecutive eight months on the section 245 conviction.
In September 2015, the court in this case sentenced Dillon to three years in state prison, as the low term on the pimping conviction. Judge Livermore denied Dillon’s request that this sentence run concurrently with the two-year eight-month Santa Clara sentence. Judge Livermore stated: “The issue as to whether these should run concurrent or consecutive, when I read this and I read about the stubborn resistance that appears to be shown in your, in your record and just . . . a disregard for . . . the laws of the State of California . . . I think it is appropriate that this sentence run consecutive and that will be the order of the court.” (Italics added.) The court minutes indicate that the sentence was “to be served consecutive to time now being served in/on any other case.” Dillon filed a notice of appeal (appeal number A146412).
By letter dated November 17, 2015, the California Department of Corrections and Rehabilitation (CDCR) noted that the court had imposed its sentence consecutive to Dillon’s sentence in the Santa Clara case, and observed that the subordinate term is required to be one-third the midterm. Essentially, the CDCR was inquiring whether the sentence in this case was the principal term or the subordinate term (see § 1170.1, subd. (a)), since it was not indicated in the minute order or the abstract of judgment.
On March 22, 2016, Judge Livermore and counsel discussed how to address the CDCR letter. They determined that the judge would reaffirm the September 2015 three-year sentence in this San Mateo case and refer the matter to the Santa Clara court to impose “a one-third the midterm consecutive sentence.” The court confirmed that “we originally anticipated [Dillon] getting . . . three years consecutive to anything else he got.” (Italics added.)
On March 25, 2016, counsel appeared before San Mateo County Superior Court Judge Lee, who confirmed that Dillon’s three-year sentence in this case was the principal term because it was longer than the sentence in the Santa Clara case. Defense counsel agreed and asserted that the abstract of judgment had to be sent again to CDCR, which would order a return of Dillon to the Santa Clara court to resentence him in the Santa Clara case.
On April 20, 2016, Judge Livermore again conferred with counsel regarding the CDCR letter. Judge Livermore stated, “I understand, [] Ms. Jackson [defense counsel] and Ms. Povah [prosecutor], that you are agreeing that we may amend the abstract to make it consistent with the sentencing order in that our sentence here is the chief sentence, the sentence in Santa Clara is the subsidiary sentence, yes?” Counsel agreed that the abstract of judgment should be amended to reflect that Dillon’s three-year sentence constituted the principal term, and the “Santa Clara sentence will be the subordinate sentence.”
Dillon filed a notice of appeal from the “order” of March 22, March 25, and April 20, 2016 (appeal number A148313). We granted appellant’s unopposed motion to consolidate the appeals.
II. DISCUSSION
Dillon contends (1) the court did not adequately state that the sentence imposed in this San Mateo case was consecutive to the terms imposed in the Santa Clara case (§ 669); and (2) his presentence custody credits were incorrectly calculated.
A. Section 669
1. Law
Section 669 requires the court to specify whether the terms of imprisonment for multiple offenses—even if imposed in separate judgments—are to be served concurrently or consecutively. Section 669, subdivision (a) provides: “When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively . . . .” (Italics added.)
This determination must be made within 60 days after the sentencing hearing, or the second judgment will be deemed to run concurrently to the first. (People v. Caudillo (1980) 101 Cal.App.3d 122, 126.) Section 669, subdivision (b) provides: “In the event that the court at the time of pronouncing the second or other judgment upon that person had no knowledge of a prior existing judgment or judgments, or having knowledge, fails to determine how the terms of imprisonment shall run in relation to each other, then, upon that failure to determine, or upon that prior judgment or judgments being brought to the attention of the court at any time prior to the expiration of 60 days from and after the actual commencement of imprisonment upon the second or other subsequent judgments, the court shall, in the absence of the defendant and within 60 days of the notice, determine how the term of imprisonment upon the second or other subsequent judgment shall run with reference to the prior incompleted term or terms of imprisonment. Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.” (Italics added.)
Section 1170.1, subdivision (a) specifies how to structure the consecutive sentence. (See Cal. Rules of Court, rule 4.452.) Essentially, the court must (1) provisionally select the lower, middle, or upper term for each conviction; (2) designate the longest sentence in step one as the principal term and the shorter sentence(s) as subordinate term(s); and (3) calculate the sentence on each subordinate term as one-third the middle term. (See People v. Miller (2006) 145 Cal.App.4th 206, 216.)
2. Application
The trial court fulfilled its obligation under section 669 by stating that Dillon’s three-year San Mateo sentence was to run consecutively to his preexisting two-year eight-month Santa Clara sentence. At the initial sentencing hearing, the judge denied Dillon’s request for concurrent sentencing and stated it was appropriate “that this sentence run consecutive,” and the court’s minutes confirmed that the sentence was “consecutive to time now being served in/on any other case.” (Italics added.) By stating in “the second . . . judgment . . . whether the terms of imprisonment or any of them to which [Dillon] is sentenced shall run concurrently or consecutively” (§ 669, subd. (a)), the court fulfilled its obligation to “determine how the terms of imprisonment shall run in relation to each other” (§ 669, subd. (b)).
Dillon contends the court made only a “partial determination” of how the terms of imprisonment shall run in relation to each other. He argues that the court was required to state not just whether the new San Mateo sentence would run consecutive to the prior Santa Clara sentence, but whether the San Mateo sentence would run consecutive to each term for each individual conviction in the Santa Clara case. He argues in his opening brief: “But the court still had to specify whether one of the Santa Clara terms, or whether both of the Santa Clara terms should be consecutive to the San Mateo term. The court could have made one Santa Clara term concurrent to the San Mateo count, and then made the other Santa Clara term consecutive to the San Mateo count. The court failed to make that determination.” Because the court did not do this within the 60 days allotted by statute, Dillon argues, the San Mateo term must run concurrently to the earlier Santa Clara terms.
Dillon provides no authority for his arguments. Instead, he says that “[a] sentencing court has authority to order some, but not all, terms to be run consecutively. (See, e.g, section 1170.1(a).)” But while it is true the court has discretion to decide which current terms will run consecutively, nowhere does section 1170.1, subdivision (a)—or section 669—require the court to specify whether the current term is consecutive to the term imposed for each individual conviction in the prior case, as opposed to merely stating that the current term is consecutive to the sentence imposed in the prior case (especially where, as here, the terms in the prior Santa Clara case were imposed consecutively as to each other). (See Cal. Rules of Court, rule 4.452(3) [judge in current case cannot change decision of judge in prior case to run the prior terms consecutively].)
Besides, even if there was such a requirement, the court satisfied it. The court’s statement that the sentence in this case would “run consecutive,” and the comment in the minutes that the sentence was to be served “consecutive to time now being served in/on any other case” is reasonably construed to mean that the sentence in this case runs consecutive to all the terms imposed in the Santa Clara case. As the court would later describe (without objection) what was accomplished at the initial sentencing hearing, “[Dillon was] getting . . . three years consecutive to anything else he got.” (Italics added.)
Dillon also notes in his discussion of section 669 that the court was required to make the term of sentence in this case the principal term pursuant section 1170.1. The court did that. To the extent Dillon is contending the court should have done so within the 60-day time limit of section 669, we disagree. Section 669 does not say anything about stating the principal term: the obligation in section 669, subdivision (b) to “determine how the terms of imprisonment shall run” obviously refers to the requirement in section 669, subdivision (a) to determine whether the sentences should be concurrent or consecutive, not to whether a term is principal or subordinate. Section 1170.1, which does refer to principal and subordinate terms, does not set a deadline for this determination and, indeed, the three-year term in this case became the principal term as soon as the court imposed it, since it was greater than the sentence imposed in the Santa Clara case. (See § 1170.1, subd. (a) [“the principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes”].)
Dillon fails to establish error in the court’s determination that the sentence in this case shall be served consecutive to the sentence imposed in the earlier Santa Clara case.
B. Custody Credits
Dillon contends the trial court erred in the way it applied his credits to his consolidated, aggregate sentence, and that he is entitled to a total of 326 days of presentence custody credit.
When the court sentences a defendant to a consolidated, aggregate term pursuant to sections 669 and 1170.1, the court must recalculate and award the defendant the credits to which the defendant is entitled in both cases. (People v. Phoenix (2014) 231 Cal.App.4th 1119, 1122–1129.) The defendant receives credit for all actual jail and prison time he or she served, plus presentence conduct credits for time served while in local custody. (People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37; see § 4019.)
Here, the parties are in agreement that Dillon is entitled to 227 days of actual custody credits, plus 99 days of conduct credits, for a total of 326 days of presentence custody credits. We will order modification of the judgment and abstract of judgment accordingly.
III. DISPOSITION
The judgment is modified such that Dillon is awarded 227 days of actual custody credits, and 99 days of conduct credits (Pen. Code, § 4019), for a total of 326 days of presentence credits. As so modified, the judgment is affirmed. The trial court shall file a new abstract of judgment reflecting this modification and deliver it to the CDCR.



NEEDHAM, J.



We concur.




JONES, P.J.




BRUINIERS, J.