P. v. John












Filed 3/20/17 P. v. John 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
SHELLY ELAINE JOHN,
Defendant and Appellant.


A147287

(Humboldt County
Super. Ct. No. 1501879)


Defendant and appellant Shelly Elaine John appeals following her sentencing in two criminal cases. In case number CR1501879, appellant pleaded guilty to felony receipt of stolen property (Pen. Code, § 496, subd. (a)), and the trial court placed her on three years’ formal probation and ordered her to serve 60 days in county jail with one day suspended. In case number CR1503671, appellant pleaded guilty to misdemeanor unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and the court ordered her to serve a jail term of 364 days, consecutive to her sentence in the felony case. The parties agree the trial court erred in two respects.
First, the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. The chronology is as follows. In July 2015, appellant’s counsel declared doubt as to her competence and the trial court suspended proceedings in the felony case pending a doctor’s evaluation. In August, the court found appellant incompetent. Later that month, the court stayed proceedings in the newly filed misdemeanor case. In late September, appellant filed a written Marsden motion in the felony case. She asserted her counsel had failed and/or refused to confer with her concerning the preparation of a defense, failed and/or refused to communicate with her, failed and/or refused to perform critical investigations, failed and/or refused to prepare and file critical motions, failed and/or refused to declare prejudice and/or conflict against her, and failed to “call [her] to court dates” and abide by her suggestions. The trial court declined to conduct a Marsden hearing on the ground that appellant had been declared incompetent, and then the court failed to conduct a Marsden hearing after she was declared competent and the proceedings recommenced.
The parties agree the trial court erred in failing to conduct a Marsden hearing in response to appellant’s September 2015 motion. Suspension of the criminal proceedings due to appellant’s incompetence did not relieve the court of that obligation. (See People v. Stankewitz (1990) 51 Cal.3d 72, 88 [“[W]hile the trial court may not ‘proceed with the case against the defendant’ before it determines his competence . . . , it may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance ‘would be substantially impaired’ if his request were ignored.”]; People v. Solorzano (2005) 126 Cal.App.4th 1063, 1069 [“Hearing a Marsden motion during a competency hearing does not reinstate criminal proceedings against the defendant.”].) The parties also agree the error requires reversal. (See People v. Hill (2013) 219 Cal.App.4th 646, 653 [“reversal is required unless we can find the denial of defendant’s right to bring a Marsden motion harmless beyond a reasonable doubt”].) As in Hill, “Here, [appellant’s] written Marsden motion listed a number of complaints about his attorney’s representation which, if true, could support a finding that the attorney failed to meet his professional responsibilities. . . . Because [appellant] might have been able to demonstrate that his attorney was not affording [her] adequate representation, the court’s failure to hold a hearing resulted in a record which precludes effective review.” (Ibid.) We will reverse the judgment and remand with directions that the court conduct a post-judgment Marsden hearing. (Ibid.)
Second, the parties agree the trial court erred in how it allocated appellant’s custody credits. A defendant is entitled to credit for “all days of custody” in county jail. (Pen. Code, § 2900.5, subd. (a).) “[C]redit 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.” (§ 2900.5, subd. (b).) If a defendant is sentenced to consecutive terms arising out of two or more cases, the sentencing court must allocate the presentence custody credits to the term stemming from the proceedings in which the credit was accrued. (People v. Lacebal (1991) 233 Cal.App.3d 1061, 1065–1066; People v. Brown (1984) 156 Cal.App.3d 1131, 1134–1135.)
In the present case, appellant was taken into custody in the felony case on April 22, 2015, and remanded into custody in the misdemeanor case on September 8. Nevertheless, the trial court at sentencing applied all of appellant’s presentence custody credits to her 364-day sentence in the misdemeanor case, including those credits earned during her period of incarceration attributable solely to the felony case. The court erred in allocating credits earned before September 8 to the misdemeanor case. (§ 2900.5, subd. (b).) Accordingly, if the trial court reinstates the judgment after conducting a Marsden hearing, the court must correct the allocation of custody credits between appellant’s two cases.
DISPOSITION
The judgment is reversed, and the case is remanded with directions to the trial court to conduct a hearing on appellant’s Marsden motion. If the motion is denied, the trial court is directed to correct the allocation of custody credits between appellant’s two cases prior to reinstating the judgment.









SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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