P v. GONZALEZ

Filed 4/4/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Regino Gonzalez appeals from his convictions for possession of a firearm by a felon (Pen. Code,[1] § 12021, subd. (a)(1)), auto theft (Veh. Code, § 10851, subd. (a)), and misdemeanor resisting or obstructing a public officer (§ 148, subd. (a)(1)). At the time he committed these offenses, defendant was on probation for domestic violence. His probation was subsequently revoked. While awaiting trial in the instant action, defendant was charged with assaulting a fellow inmate. The instant action went to trial. The other two cases were resolved by plea. The three cases were consolidated for the purpose of sentencing. Defendant remained in custody throughout the proceedings.

At the time sentence was imposed, the court awarded custody credits in the domestic violence and the inmate assault cases, but not in this case. Defendant contends the trial court erred in not awarding custody credits in this case and that some of the credits awarded in the domestic violence case should be reallocated to this case. He argues the court's failure to allocate any of the credits to this case resulted in a loss of 315 days of custody credits. We agree that custody credit should be awarded in this case and shall therefore reverse and remand.

Facts and Procedural History[2]

The Domestic Violence Case (SS030809A)

In January 2003, defendant was charged with multiple counts of domestic violence, criminal contempt and disobeying a protective order in Monterey County Superior Court. Defendant was taken into custody in the domestic violence action on January 17, 2003. In March 2003, he pleaded guilty to one count of inflicting corporal injury. The court suspended imposition of sentence and placed defendant on formal probation for five years. Conditions of probation included a county jail sentence, a domestic violence program, substance abuse counseling and a prohibition from possession of firearms. The remaining charges were dismissed. Defendant was in jail for the domestic violence action from January 17, 2003, until September 14, 2003.

The Auto Theft and Gun Case (SS033343A)

On November 16, 2003, defendant was arrested in the instant action in Monterey County and charged with auto theft, assault on a police officer with a firearm, possession of a firearm by a felon, resisting arrest and related counts. The case went to trial in August 2004. The jury found defendant guilty of auto theft, possession of a firearm by a felon and misdemeanor resisting arrest. The jury was unable to reach a verdict in each of the remaining five counts and the court declared a mistrial as to those counts.

Revocation of Probation

Following his arrest in the auto theft and gun action in November 2003, defendant's probation in the domestic violence action was summarily revoked. Defendant remained in custody.

The Inmate Assault Case (SS041975A)

While in custody, defendant was charged with various counts in Monterey County for assaulting another inmate on June 17, 2004.

The Negotiated Disposition

The parties appeared in court in all three actions on October 20, 2004. A disposition was reached.

The parties agreed that in addition to the jury findings in the auto theft and gun case, defendant would plead no contest to one count of battery with serious bodily injury in the inmate assault action and admit a probation violation in the domestic violence case. The parties stipulated that defendant would be sentenced to the upper term of four years on the battery count, one year consecutive on the probation violation and eight months consecutive on each of the felony counts in the auto theft and gun case. The parties also agreed that defendant's maximum sentence would be six years and four months for the entire package and that all unresolved charges and enhancements would be dismissed at the time of sentencing. There was no discussion or agreement regarding custody credits.

Sentencing Hearing and Allocation of Custody Credits

At the sentencing hearing on November 24, 2004, the court sentenced defendant to the upper term of four years in the inmate assault case, a consecutive term of one year in the domestic violence action and two consecutive eight-month terms in the auto theft and gun case, for a total sentence of six years and four months. In calculating custody credits, the court divided defendant's periods of incarceration into three separate phases. The first period ran from January 17, 2003, until September 14, 2003 (the time served on the domestic violence case before the arrest in the auto theft and gun case). The second period ran from November 16, 2003 (the date of the arrest for the auto theft and gun charges), until June 16, 2004 (the day before the inmate assault). The third period ran from June 17, 2004 (the date of the inmate assault), until November 24, 2004 (the date of sentencing).

There does not appear to be any dispute regarding custody credits for the first or third periods of incarceration. The court allocated the first period of incarceration to the domestic violence case and gave defendant credit for 241 actual days served plus 120 good time/work time days (hereafter â€