P. v. Foley

Filed 5/11/06  P. v. Foley CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge.  Affirmed.

            Leon Foley (Foley) entered a negotiated guilty plea to mayhem (Pen. Code, §  203)^[1] and infliction of corporal injury on a spouse or cohabitant (§  273.5, subd. (a)) arising from an incident in which he slashed the victim's face, head and upper body with a razor.  He admitted personally using a deadly weapon, and stipulated to a five-year prison term (§  12022, subd. (b)(1)).  The court sentenced him to the stipulated term:  the four-year middle term for mayhem enhanced one year for the deadly weapon use and a concurrent term for inflicting corporal injury on a spouse or cohabitant.

            The court awarded Foley 156 days credit for time he served in custody between November 20, 2004, and April 4, 2005.  Foley contends he was also entitled to custody credits between September 27, 2004, and November 19, 2004 (disputed time), and that the trial court erred in denying him this credit.  We conclude that because this disputed time in custody was attributable to an unrelated misdemeanor drug offense and efforts to modify the sentence on the drug case were unauthorized, the court did not err.  We affirm the judgment. 

FACTS^[2]

            In April 2004, about six months before the incident at issue in this case, Foley pled guilty to a misdemeanor complaint charging him with being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision  (a).  (People v. Foley (Super. Ct. San Diego County, 2004, No.  M922340 (the drug case).)^[3]  In accordance with section 1000, the court deferred entry of judgment and imposed certain conditions.  However, because Foley failed to comply with various court orders, the court ultimately set aside the deferral, placed him on probation, and set a review hearing.  On August 4, 2004, when Foley failed to appear for the review hearing, the court issued an arrest warrant.

            On September 18, 2004, Foley was arrested in Los Angeles on unrelated charges and pled guilty.  After sentencing on those charges, he was transferred to San Diego, where, as a result of the current warrant in the drug case, he was booked into jail on September 24, 2004.  Three days later, on September 27, he was arrested in the instant case and booked on those charges; he was not charged until October 13.  In the meantime, on October 1, the court formally revoked probation on the drug case and remanded him to custody pending sentencing.  On November 19, the court terminated drug probation, placed Foley on summary probation, and sentenced him to 90 days in custody with credit of 85 days (57 actual, 28 §  4019) for time served. 

            On December 13, Foley entered his guilty plea in this case and on April 4, 2005, the court imposed the five-year stipulated sentence.  The court awarded Foley 156 days of credit for the time he served between November 20, 2004, and April 4, 2005.  The court denied Foley's request that he also be given credit from September 27, 2004 (the date he was arrested and booked on the instant charge), to November 19, 2004 (the date the court sentenced him on the drug case).

            In an effort to have this disputed time period attributed to the instant case, rather than the unrelated drug case, Foley requested that the court overseeing the drug case modify his sentence nunc pro tunc.  The commissioner granted the request, ordered that probation be terminated and sentenced Foley to three days, time served, effective September 24, 2004.  Thereafter, Foley again asked the trial court in the instant case to modify the sentence to add an additional 62 days credit for time served including the period of September 27 to November 19, 2004.  The court denied the request, rejecting Foley's claim that because the commissioner had modified his sentence to three days (September 24 through September 26) all time he served in custody after that date was attributable to the instant case, not the drug case. 

DISCUSSION

            Section 2900.5 provides in pertinent part:

" (a)  In all felony and misdemeanor convictions .  .  .  , when the defendant has been in custody  .  .  . , including  .  .  . any time spent in a jail .  .  . all days of custody .  .  . shall be credited upon his .  .  . term of imprisonment  .  .  .  .

" (b)  For the purposes of this section, 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 In re Rojas (1979) 23 Cal.3d 152 the defendant was serving a prison term for manslaughter when he was tried and convicted for a murder committed before his imprisonment.  While awaiting trial on the murder charge, he was transferred from Soledad State Prison to the Los Angeles County jail.  During this time, he continued to receive credit on his term of imprisonment for manslaughter.  He was convicted of murder in Los Angeles and the court imposed a term concurrent with the manslaughter term.  The Supreme Court held he was not entitled to receive credit for the time spent in the Los Angeles County jail on both the manslaughter sentence and the murder sentence.  The court noted the purpose of section 2900.5 was to " eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts."   (In re Rojas, supra, at p.  156.)  Thus, the court concluded, one charged with a crime who is already serving a sentence for another crime is not deprived of his liberty as a result of the second charge.  (Ibid.)  " [C]redit is to be given 'only where' custody is related to the 'same conduct for which the defendant has been convicted.'  [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."   (Id. at pp.  155-156.)

            In In re Joyner (1989) 48 Cal.3d 487, a case with facts similar to the present one, the Supreme Court resolved the previously unsettled issue of entitlement to credit for time served before sentencing on the unrelated crime.

            In In re Joyner, supra, 48 Cal.3d 487, California issued arrest warrants against the defendant in January 1983.  Joyner was arrested in Florida on March 15, at which time a hold was placed on him at California's request.  He stayed in Florida custody until July  19, when he was sentenced to concurrent three-year terms in Florida state prison.  On September 2, he was extradited to California where he pleaded guilty.  On December 29, the California court sentenced him to prison for four years concurrently with the Florida sentence.  He was denied any presentence custody credit for the time spent in custody in Florida.  The Supreme Court held that Joyner had failed to demonstrate that his presentence custody in Florida was attributable to the California hold and thus he was not entitled to custody credits.

            Foley seeks to distinguish In re Rojas, supra, and In re Joyner, supra, by arguing that in April 2005, the court in the drug case modified his sentence nunc pro tunc to three days and that any time spent in custody after September 26, 2004, was attributable to the instant case, not the drug case.  The argument is unavailing as the modified sentence conflicts with the requirement that a defendant convicted of violating Health and Safety Code section  11550 must be ordered to serve a minimum 90 days in custody (Health & Saf. Code, §  11550, subd. (a)) or placed in a drug rehabilitation program (Health & Saf. Code, §  11550, subd. (c)).  A sentence is unauthorized if it " could not lawfully be imposed under any circumstances in the particular case."   (People v. Scott (1994) 9 Cal.4th 331, 354.)  The nunc pro tunc sentencing modification eliminating Foley's mandatory obligation to serve 90 days in custody was therefore an unauthorized sentence and subject to correction on review.  (People v. Menius (1994) 25 Cal.App.4th 1290, 1295.)  When we correct the unauthorized sentence, the record reflects that Foley was awarded credit for time served between September 27 and November 19, 2004, and that this time was attributable to the unrelated drug case, not the instant case.  Having been awarded that credit in the drug case, the court did not err in refusing to award it a second time while sentencing Foley in the instant case.

DISPOSITION

            The judgment is affirmed.

HALLER, J.

WE CONCUR:

  HUFFMAN, Acting P. J.

      IRION, J.

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^[1]           All statutory references are to the Penal Code unless otherwise indicated.

^[2]             Because Foley pled guilty and the only issue raised on appeal relates to presentence credits, we set forth the facts relevant to resolving the sentencing issue, not the facts related to the underlying crime.

^[3]           In order to set forth the procedural background of the drug case, we have taken judicial notice of the court file in case No.  M922340.