P. v. Miller

Filed 9/27/07 P. v. Miller CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

An amended information charged defendant with one count of possession of a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a); one count of possessing a hypodermic needle and syringe, in violation of Business and Professions Code section 4140; and a prior strike allegation pursuant to Penal Code section 1170.12.^[1] Defendant pled guilty to possessing a controlled substance and admitted her prior strike pursuant to section 1170.12. The trial court placed defendant on probation.

After violating probation three times, the trial court sentenced defendant to an aggregate term of four years. The court committed defendant to the California Rehabilitation Center (CRC), but she was statutorily ineligible for commitment to CRC because of her prior strike and she was referred back to the trial court for further proceedings. The court vacated its previous sentence of four years and resentenced defendant to an aggregate term of 32 months in state prison. She was awarded presentence credits in the amount of 239 days.

On appeal, defendant contends that her trial counsel provided ineffective assistance for failing to request the trial court to strike her prior strike. Additionally, she maintains that the sentencing court miscalculated the number of presentence credits to which she was entitled. The People agree that the court miscalculated the presentence credits, but contest defendants claim of ineffective assistance of trial counsel. We are unpersuaded by defendants claims of ineffective assistance of counsel, but remand to the trial court and direct it to calculate defendants presentence credits in a manner consistent with this opinion.

BACKGROUND

On August 11, 2005, detectives on patrol approached a vehicle in a parking lot containing two people.^[2] They observed several hypodermic needles in the area around the front seat of the car. They ordered defendant, who was on the drivers side, out of the car; the detectives then observed a loaded hypodermic syringe containing a dark-colored solution on the front seat. This substance was later determined to be a combination of heroin and blood.

The detectives removed defendants male companion from the passenger seat of the vehicle. They then spotted a number of burnt spoons and used syringes on both the passenger and driver sides of the vehicle. The detectives searched the vehicle and collected approximately 24 syringes, burnt spoons, and a number of small cotton balls. Detectives also located a small quantity of a substance later determined to be .1 gram of heroin on the floor of the vehicle.

On December 5, 2005, an amended information was filed charging defendant with one count of possession of a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a); one count of possessing a hypodermic needle and syringe, in violation of Business and Professions Code section 4140; and a prior strike allegation pursuant to section 1170.12. The following day, on December 6, defendant pled guilty to possessing a controlled substance and admitted her prior strike pursuant to section 1170.12. On December 8, imposition of sentence was suspended and defendant was placed on Proposition 36 probation for three years.

On May 3, 2006, after three admitted probation violations, the trial court sentenced defendant to four years. The court doubled for the prior strike the middle term of two years for defendants drug conviction. The court awarded 270 days of presentence credit to defendant. The court suspended execution of this sentence pursuant to Welfare and Institutions Code section 3051 on the grounds that it had found that defendant was a drug addict or in imminent danger of becoming one, and committed defendant to the Department of Corrections for confinement at CRC. On October 6, 2006, CRC found defendant statutorily ineligible for its program pursuant to section 1170.12, subdivision (a)(4), because of her prior strike.

On January 30, 2007, the court vacated the sentence, and sentenced defendant to an aggregate term of 32 months in state prison based on the doubling for the prior strike the lower term of 16 months for defendants drug conviction.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Ineffective Assistance of Trial Counsel

Defendant contends that her trial counsel rendered ineffective assistance when, after she failed on Proposition 36 probation, her attorney failed to make a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike her prior. Defendants prior strike made her statutorily ineligible for CRC.

To prevail on an ineffective assistance claim, defendant bears the burden of establishing both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) She must show that defense counsels representation fell below an objective standard of reasonableness under prevailing professional standards and that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Ibid.; People v. Lewis (1990) 50 Cal.3d 262, 288.) When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsels performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in

In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)

In the present case, defendants claim of ineffective assistance of counsel is based on her attorneys failure to request the lower court to strike her prior strike. In Romero, supra, 13 Cal.4th at pages 529-530, the court held that section 1385, subdivision (a) permits a trial court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. The Romero court explained that the exercise of discretion under that subdivision is limited by the amorphous concept of furtherance of justice, which requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People. (Romero, supra, at p. 530.)

In People v. Williams (1998) 17 Cal.4th 148, 161, our Supreme Court explained that in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to [section 1385, subdivision (a)], or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies. There must be something exceptional about the priors, or the current offense, or the defendants background, character, and prospects, to justify the extraordinary exercise of discretion involved in striking a strike. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338; People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)

Since the trial court has discretion to strike a prior strike on its own motion (People v. Sotomayor (1996) 47 Cal.App.4th 382, 390-391), defendants claim of ineffective assistance of counsel requires us to infer that the lower court was unaware of its discretion to strike her prior strike.^[3] If the record affirmatively established that the court was aware of its authority to strike the prior, then clearly defendant could not establish that her attorneys failure to bring a motion to strike resulted in any prejudice. Since the record is silent regarding the courts awareness of its authority to strike the prior, we look to see if defendant can show prejudice.

The record establishes that, since 1976, defendant had at least 10 misdemeanor convictions in addition to her strike conviction. Moreover, she had three prior grants of formal probation in 1980, 1995, and 1999. The probation report for defendants presentencing stated: Although the circumstances of the present offense, on their own, may not warrant a state prison commitment, the defendants continued involvement in criminal activity, her lengthy history of substance abuse, and her well-documented unwillingness to actively address those issues, are believed to make her unfit for a local disposition in this case. [Defendant] has struggled to comply at every level of local supervision available . . . . She has failed to complete two prior court-ordered substance abuse treatment programs, and has now undermined her chances for a third program. The probation officer stated that [n]o intervention to date has kept [defendant] from returning to her destructive pattern of abuse, and nothing she offered in the presentence interview gives any hope that this conduct will stop anytime soon. Further, the probation officer recommended against CRC because defendants lack of commitment and motivation to face her issues with drug abuse [made] her unsuitable for that resource.

Defendant argues that her prior convictions, other than her one prior strike in 1998 for a burglary conviction, were for simple drug possession and she does not pose a danger to society. She claims these crimes do not indicate that she is a career criminal from whom society needs protection. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979.) Further, since the court wanted to commit defendant to CRC prior to learning that she was statutorily ineligible because of her prior, it is reasonably probable the court would have stricken her prior if such a request had been made so that she could be committed to CRC.

As the probation report indicates, defendant had a lengthy history of using illegal drugs and still demonstrated an unwillingness to address her problems. Her persistent drug use poses a danger to society. There is nothing in the record that indicates that there is something exceptional about her priors, or the current offense, or her background, character, and prospects, to justify the extraordinary exercise of discretion involved in striking a strike. (See, e.g., People v. Strong, supra, 87 Cal.App.4th at pp. 337-338.) Given defendants repeated violations of the conditions of her Proposition 35 probation and her inability to refrain from using illegal drugs, it is not reasonably probable the court would have stricken her prior strike had her counsel requested it. Accordingly, we conclude that defendant has failed to establish prejudice.

II. Calculating the Number of Defendants Presentence Credits

Defendant contends that the court miscalculated the number of presentence credits to which she was entitled following her exclusion from CRC. The court sentenced defendant on January 30, 2007, to an aggregate term of 32 months in state prison after her exclusion from CRC. The abstract of judgment on February 9, 2007, awarded her 239 days of presentence credits. Defendant claims this calculation was incorrect and the People agree.

As of April 13, 2006, the record establishes that defendant had 240 days of credit, which was comprised of 160 days of actual credit and 80 days of conduct credit. By May 3, 2006, when defendant was being committed to CRC, defendant had 270 days of credit (180 actual, 90 conduct). Thus, as the People agree, the calculation of 239 days of presentence credits is clearly incorrect.

In calculating the presentence credits, the probation department submitted a memorandum on January 31, 2007, regarding defendants time credits. This memorandum specified that defendant had 184 days from her previous housing plus 55 days from her current arrest for a total of 239 days of credit. Based upon the probation departments determination that defendant spent 239 actual days in county custody, the court should have awarded defendant additional conduct credits pursuant to section 4019, which is often referred to as good conduct credit. Presentence custody credit is calculated under section 4019 by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. (People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Thus, according to the record before us, defendant served a total of 239 actual days, and this number should have been divided by four for a quotient of 59.75, which should have been rounded down to 59. Fifty-nine should have been multiplied by two for a total of 118 conduct custody credits. This number should have been added to the actual credits of 239 for a total of 357 presentencing credits. (See, e.g., People v. Donan (2004) 117 Cal.App.4th 784, 789-790.)

Defendant contends that the court also failed to include the actual and section 4019 credits to which she was entitled for the time she spent in confinement following her exclusion from CRC on October 6, 2006, until her delivery to the superior court for resentencing. Defendant was entitled to credits while awaiting transportation back to superior court from CRC and was entitled to either worktime credit pursuant to section 2933 or good conduct credit pursuant to section 4019, whichever was the most favorable to defendant. (People v. Mitchell (2004) 118 Cal.App.4th 1145, 1149-1150.) In the present case, defendant maintains she would have benefited more from section 4019 credits since her credits pursuant to section 2933 would have been limited by her prior strike.^[4] She was entitled to have these section 4019 credits calculated on the basis of the aggregate number of her days in custody. (People v. Culp (2002) 100 Cal.App.4th 1278, 1283.) Thus, defendant is entitled to actual and section 4019 or section 2933 credits, whichever is more beneficial, for the period between defendants exclusion from CRC on October 6, 2006, until her delivery to the superior court for resentencing.

Finally, defendant maintains the court erred in failing to award her actual credits as well as work-time credits pursuant to section 2933 for the entire period she spent at CRC. In the present case, it is undisputed that defendant was statutorily ineligible for treatment. When ineligibility . . . is neither the result of the defendants postsentencing conduct nor within his [or her] control the commitment is voided and the defendants right to receive the same credits [the defendant] would have received had [the defendant] been sentenced to prison in the first instance is triggered. (People v. Mitchell, supra, 118 Cal.App.4th at p. 1149.) Thus, under the holding of Mitchell, defendant was entitled to actual and worktime credits pursuant to section 2933 for the entire period she was at CRC. However, defendant cannot double-dip and receive credit for this period under both section 4019 and section 2933. (Mitchell, supra, at p. 1150.) Defendant is entitled to the credit most favorable to her, but not both. (Ibid.)

Accordingly, we remand to the trial court and direct it to calculate properly defendants credits. The award of credits must include the calculation of presentencing credits, which includes 239 actual days in county custody plus section 4019 credits based on 239 actual days in county custody; the calculation of actual and good conduct custody credits under section 4019 or worktime credits under section 2933, whichever is more beneficial, for the time defendant spent in confinement following her exclusion from CRC on October 6, 2006, until her delivery to the superior court for resentencing; and the calculation of actual credit and either worktime credits under section 2933 or good conduct credits under section 4019, whichever is more beneficial for defendant, for the period defendant spent at CRC.

DISPOSITION

We remand to the trial court and direct it to calculate defendants actual and presentence credits forthwith in a manner consistent with this opinion and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

People v. Miller (A116975)

^[1] All further unspecified code sections refer to the Penal Code.

^[2] The facts are from the probation report.

^[3]Romero establishes that where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion as clarified in Romero. (People v. Fuhrman (1997) 16 Cal.4th 930, 944, citing Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Here, however, the record does not affirmatively establish that the trial court misunderstood its discretion.

^[4] Defendant calculates the credits by assuming the 55 days from current arrest date stated in the probation officers memorandum of January 31, 2007, refers to the actual days defendant was in county jail following her return from CRC. We will not make any such assumptions and remand for a proper calculation.