Filed 1/31/18 P. v. McClenahan CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
| THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AARON McCLENAHAN, Defendant and Appellant. |
A147781, A150437
(Solano County Super. Ct. Nos. VCR219865, VCR220078, VCR220204)
|
This consolidated appeal concerns the imposition of an allegedly unlawful sentence upon defendant by the Solano County Superior Court. Over the course of two appeals, defendant has been resentenced three times by the trial court, most recently in August 2017. After receiving responses to requests for supplemental briefing, we have determined the latest resentencing proceeding renders all issues on appeal moot, save the appropriate award of credit for time served to defendant. Accordingly, we will modify the judgment to award the correct number of credits, and as modified, affirm.
I. BACKGROUND
Defendant was charged with various felonies in three Solano County cases (case Nos. VCR219865, VCR220078, and VCR220204).[1] On March 17, 2014, defendant entered into a negotiated disposition of these cases. In case No. VCR219865, he pleaded no contest to evading an officer with willful or wanton disregard for safety. (Veh. Code, § 2800.2, subd. (a).) Likewise, in case No. VCR220078, defendant pleaded no contest to receiving a stolen vehicle with a prior (Pen. Code,[2] § 666.5) and admitted having suffered a prior prison term (§ 667.5, subd. (b)). Finally, in case No. VCR220204, defendant pleaded no contest to two counts of possession of methamphetamine while armed with a firearm. (Health & Saf. Code, § 11370.1, subd. (a).) In all three cases, the remaining charges were dismissed.
Several months later, in June 2014, an information was filed in Contra Costa County charging defendant with, among other things, two counts of first degree burglary. (§§ 459, 460, subd. (a).) On July 31, 2014, defendant pleaded no contest to one count of first degree burglary and the remaining charges were dismissed. The same day, defendant was sentenced in Contra Costa County to the middle term of four years in state prison.
More than a year later, on October 27, 2015, defendant was sentenced by the Solano County trial court to an aggregate term of six years eight months as follows: the upper term of four years for receiving a stolen vehicle with a prior in case No. VCR220078; a consecutive year (one-third the midterm) for possession of methamphetamine while armed in case No. VCR220204; a consecutive eight months (one‑third the midterm) for evading an officer in case No. VCR219865; and a consecutive one year for the prior prison term in case No. VCR220078. Despite its awareness of the Contra Costa County sentence, the Solano County trial court did not combine the Contra Costa and Solano County terms in a single aggregate term, and instead ordered defendant’s Solano County sentence to run consecutive to the Contra County sentence. Defendant appealed (case No. A147781), arguing the Solano County trial court’s sentence violated section 1170.1, California Rules of Court, rule 4.452, the terms of his plea bargain, and due process.
While the first appeal was pending, the Solano County trial court recalled its sentence, imposing modified sentences on August 22, 2016 and December 7, 2016. The December 7, 2016 sentence imposed a principal, middle term of four years for the Contra Costa burglary, consecutive one-third the middle terms for the Solano County offenses, and one year for the prior prison term enhancement, for a total of seven years eight months. Defendant filed a second appeal (case No. A150437) from the December 7, 2016 sentence. After requesting supplemental briefing from the parties, we determined the modified sentence mooted the issues raised in the first appeal, consolidated the two appeals, and ordered further briefing on arguable errors in the sentence reflected in the amended abstract of judgment.
The parties fully briefed the second appeal. In his opening brief, defendant challenged the Solano County trial court’s December 7, 2016 sentence on the ground the trial court impermissibly ran the Contra Costa County and Solano County terms consecutively, rather than concurrently, to each other, in violation of defendant’s Contra Costa plea bargain and due process, and contested the trial court’s award of credits. In his reply brief, defendant informed this court that after filing his opening brief, he withdrew his plea in Contra Costa County. Thereafter, on August 9, 2017, the Solano County Superior Court again recalled and modified defendant’s sentence, and issued a modified abstract of judgment. Noting defendant had withdrawn his plea in Contra Costa County, the Solano County trial court resentenced defendant to the original aggregate term of six years eight months without reference to the yet-to-be-imposed Contra Costa County sentence, and awarded a total of 887 credits. Approximately one week later, on August 18, 2017, the Contra Costa County Superior Court also resentenced defendant, resulting in a “paper commitment” on his Contra Costa County offense. Defendant attached copies of the amended abstracts of judgment from the Contra Costa and Solano County cases to his reply brief,[3] and asserted the further sentencing proceedings mooted the issues raised in his second appeal, save the proper calculation of credits.
After ordering the record augmented with the amended abstract of judgment, reporter’s transcript, and minutes from the August 9, 2017 Solano County resentencing hearing, we requested two rounds of further briefing from the parties to address (1) whether the trial court had jurisdiction to resentence defendant on August 9, 2017; (2) whether the resentencing rendered all issues moot save the proper award of credits; and (3) the proper calculation of credits. The parties filed supplemental briefs agreeing (1) the Solano County trial court had jurisdiction to resentence defendant on August 9, 2017, because defendant had withdrawn his plea in Contra Costa County; (2) the August 9, 2017 resentencing rendered all issues on appeal moot except the proper award of credits; and (3) this court’s proposed calculation of credits was correct.
II. DISCUSSION
As discussed above, this consolidated appeal has a long and complicated procedural history. We feel compelled to point out, however, that it has taken us longer than expected to resolve it, due to defendant’s counsel’s failure to provide records in a timely and procedurally adequate manner. Though counsel argued defendant’s withdrawal of his plea in Contra Costa County and subsequent resentencing proceedings rendered many of the issues raised on appeal moot, he failed to seek augmentation of the record or judicial notice of relevant records from the Contra Costa and Solano County courts, attaching only the amended abstracts of judgment as “appendices” to his reply brief. This court was left to its own devices to obtain relevant records from the Solano County trial court and twice had to put the matter out for supplemental briefing. In future, counsel would be well advised to follow applicable rules and procedures to ensure this court has an adequate and complete record.
A. Mootness
On August 9, 2017, the Solano County trial court recalled its December 7, 2016 sentence, which designated the Contra Costa offense as the principal term, because defendant had withdrawn his plea on the burglary offense in Contra Costa County. The trial court had authority to recall and resentence defendant because his withdrawal of the Contra Costa County plea rendered the prior sentence legally unauthorized and subject to correction at any time. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044–1045.)
The trial court’s entry of an amended abstract of judgment on August 9, 2017, necessarily vacated the December 7, 2016 sentence, and moots defendant’s claims of error with respect to that sentence. Because defendant is no longer being detained pursuant to the now superseded sentence, we can grant him no effective relief as to any alleged error in that sentence. (See, e.g., Schoshinski v. City of Los Angeles (2017) 9 Cal.App.5th 780, 797; People v. J.S. (2014) 229 Cal.App.4th 163, 170.)
As to the August 9, 2017 sentence, defendant contends, and the Attorney General agrees, the resentencing rendered all issues in the consolidated appeal moot save the proper award of credits.[4] Because the sentence contained in the amended abstract of judgment is properly the subject of the appeal challenging the original judgment (Cal. Rules of Court, rule 8.340(a)(1)), we turn now to resolution of the credits issue.[5]
B. Credits
As noted above, we requested further briefing from the parties on the correct number and allocation of credits. Defendant and the Attorney General indicated they both agree with the following calculation of credits.
The probation report reflects defendant was in custody on the Solano County offenses for the following periods prior to the original sentencing: December 29, 2013 (one day); February 7 to February 10, 2014 (four days); March 2 to April 7, 2014 (37 days); and October 9, 2014 to October 27, 2015 (384 days). Thus, defendant was entitled to 426 days of presentence actual custody credit at sentencing on October 27, 2015. Based on his 426 actual custody credits, defendant was entitled to 426 conduct credits for the same period. (§ 4019; People v. Chilelli (2014) 225 Cal.App.4th 581, 587 [conduct credits accrue at rate of two days for every two days in actual custody].) In addition, defendant is entitled to actual custody credits for the time spent in prison from October 27, 2015 to August 9, 2017, in the amount of 652 custody credits. (§ 2900.1; see People v. Buckhalter (2001) 26 Cal.4th 20, 37; People v. Saibu (2011) 191 Cal.App.4th 1005, 1012.) Thus, defendant has a total of 1,504 days of credit (852 days of presentence credit plus 652 actual custody credits for time spent in prison between original sentencing and final resentencing).
Defendant’s credits were improperly allocated among his three cases in December 2016, resulting in an effective loss of credits or “dead time.”[6] (See People v. Gonzalez (2006) 138 Cal.App.4th 246, 252–254.) Further, the August 9, 2017 sentence awarded defendant a total of only 887 total credits.[7] To avoid any confusion or loss of credits on remand, the trial court shall amend the August 9, 2017 abstract of judgment to allocate 1,034 actual custody and 426 conduct credits to the principal term (four years) on case No. VCR220078, 43 actual custody credits to case No. VCR220204, and one day actual custody credit to case No. VCR219865.
C. Other Issues
In his second supplemental brief, defendant made two additional requests of this court: (1) defendant asked us to order the trial court to award worktime credits for the period between October 27, 2015, and resentencing in August 2017; and (2) asked us to order our decision will be final immediately and the remittitur shall issue forthwith. Defendant’s first request is denied because any prison worktime credits accrued after sentencing on October 27, 2015 pursuant to section 2933 are to be determined by the CDCR. (People v. Buckhalter, supra, 26 Cal.4th at p. 31; People v. Mendoza (1986) 187 Cal.App.3d 948, 954.) As to the second request, the Attorney General declined to stipulate to immediate issuance of the remittitur, and defendant did not file a request or stipulation to dismiss this appeal. Accordingly, we cannot direct immediate issuance of the remittitur. (Cal. Rules of Court, rules 8.366(a), 8.272(c)(1) [“A Court of Appeal may direct immediate issuance of a remittitur only on the parties’ stipulation or on dismissal of the appeal under rule 8.244(c)(2).”]; 8.244(c)(2) [request to dismiss].)
III. DISPOSITION
The judgment of conviction is modified to award defendant 1,504 credits, allocated among his Solano County cases as discussed herein. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the CDCR.
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Margulies, J.
We concur:
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Humes, P. J.
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Banke, J.
A147781/A150437 People v. McClenahan
[1] We need not recite the underlying facts of each case because they are irrelevant to the issues raised in this appeal.
[2] All statutory references are to the Penal Code unless otherwise indicated.
[3] We take judicial notice of the amended abstracts of judgment. (Evid. Code, §§ 452, subd. (d), 459.)
[4] We deny defendant’s October 12, 2016 request for judicial notice of (1) a letter from the Department of Corrections and Rehabilitation (CDCR) and (2) a legal status summary dated January 28, 2016, as both documents are relevant only to issues that are now moot.
[5] We acknowledge the general rule that errors in the calculation of credits should be addressed in the first instance to the trial court. (§ 1237.1; see People v. Mitchell (2001) 26 Cal.4th 181, 187–188.) There is a recognized exception to the rule, however, when other issues are raised on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 427.) Because defendant first raised the issue of the proper award of credits in his opening brief in the second appeal along with other issues, we decide it under that exception. In addition, given the complicated procedural history of this case, the repeated errors in the calculation of credits in the trial court, and the parties’ ultimate agreement regarding defendant’s entitlement to credits on undisputed facts, we now resolve the award of credits in the interest of judicial economy. (See id. at pp. 427–428.)
[6] By assigning the vast majority of defendant’s credits to case No. VCR220078, which carried a sentence of only one year, the court rendered any credit beyond 365 days “dead time.”
[7] Because the basis of the trial court’s calculation of credits is unclear from the record, and both parties agree our calculations are correct, we do not address the errors.
