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Filed 7/10/13 P. v. Nunez CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALFREDO NUNEZ,
Defendant and
Appellant.
F063773
(Super.
Ct. No. VCF241165)
APPEAL
from a judgment of the Superior Court of
County. Valeriano Saucedo, Judge.
J.
Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
Appellant, Alfredo Nunez, pled no
contest to transportation of a controlled
substance (count 1/Health & Saf. Code, § 11379, subd. (a)), possession
for sale of a controlled substance (count 2/Health & Saf. Code, § 11378),
being a felon in possession of a firearm (count 3/Pen. Code, § 12021, subd.
(a)(1)),
4/§ 529). Nunez also admitted two
prior conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c))
and an arming enhancement (§ 12022,
subd. (c)) in each of counts 1 and 2 and three prior prison term enhancements
in each of the four counts (§ 667.5, subd. (b)). Following independent review of the record
pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), we will make
certain modifications to the judgment and affirm it as modified.
FACTUAL AND PROCEDURAL HISTORY
On August
23, 2010, at approximately 12:53 p.m., Tulare police detectives stopped a car
driven by Nunez because it did not have a front license plate.
driver’s license and identified himself as Manuel Lopez with a date of birth of
January 12, 1972.
Nunez gave
the detectives permission to search his car.
Under the ashtray the detectives found a baggie containing 25 grams of
methamphetamine. They also found $543 on
Nunez during a pat search.
Nunez was arrested and his car was
impounded. A search of the car at the
police station uncovered a handgun that had been stolen in Sacramento.
During an in-custody interview,
Nunez identified himself as Ladimir Vasquez before he realized his mistake and
again identified himself as Manuel Lopez.
Nunez had in his possession a forged driver’s license in the name of
Manuel Lopez. His true identity was
discovered when a live scan was run on him.
On December 14, 2010, the district
attorney filed an information charging Nunez with the four offenses he pled to
and one count each of forgery (count 5/§ 470, subd. (a)),
6/Health & Saf. Code, § 11366.8, subd. (a)), giving false information
to a police officer (count 7/§ 148.9, subd. (a)), and driving without a valid
license (count 8/Veh. Code, § 12500, subd. (a)). Counts 5 and 6 each also alleged three prior
prison term enhancements.
On April 18, 2011, the court denied
Nunez’s Marsden
On August 16, 2011, the court
denied a second Marsden motion by
Nunez.
On August 29, 2011, Nunez filed a
motion to quash a warrant and for disclosure of the identity of a confidential
informant.
On September 9, 2011, Nunez entered
his plea in exchange for the dismissal of the remaining counts and allegations
and a stipulated sentence of 11 years 8 months.
The court then vacated Nunez’s motion to quash and for disclosure of the
informant’s identity.
On October 7, 2011, the court
sentenced Nunez to an aggregate term of 11 years 8 months as follows: an
aggregate 11-year term in count 1 consisting of the aggravated term of four
years on his transportation of methamphetamine offense, a three-year arming
enhancement, a three-year prior conviction enhancement and a one-year prior
prison term enhancement, a consecutive eight-month term on his possession for
sale conviction in count 2, and concurrent, aggravated terms of three years
each on counts 3 and 4. The court also
stayed: 1) a prior conviction enhancement and two prior prison term
enhancements in count 1; 2) the arming enhancement, two prior conviction enhancements,
and three prior prison term enhancements in count 2; and 3) three prior prison
term enhancements in counts 3 and 4.
Additionally, the court awarded Nunez 67 days of presentence custody
credit consisting of 45 days of presentence actual custody credit and 22 days
of presentence conduct credit against the sentence it imposed in each count.
Nunez’s appellate counsel has filed
a brief which summarizes the facts, with citations to the record, raises no
issues, and asks this court to independently review the record. (Wende,
supra, 25 Cal.3d 436.) Nunez has not responded to this court’s
invitation to submit additional briefing.
However, our review of the record
disclosed that the trial court erred by: 1)
failing to award Nunez presentence custody credit from the date of his
arrest on August 23, 2010; 2) awarding presentence custody credit against the
consecutive term it imposed in count 2; 3) imposing more than two prior
conviction enhancements and more than three prior prison term enhancements; 4)
staying some of the prior conviction and prior prison term enhancements and one
of the arming enhancements; and 5)
listing the prior conviction enhancements in section 2 of Nunez’s abstract of
judgment.
Presentence Custody Credit
A defendant is entitled to
presentence actual custody credit for
each day he spends in presentence custody.
(§ 2900.5, subd. (a).) From the
date of his arrest on August 23, 2010, through the date of his sentencing on
October 7, 2011, Nunez was in presentence actual custody 411 days. Thus, the court erred when it awarded Nunez
only 45 days of presentence actual custody credit for this period of time.
Further, from January 25, 2010,
through September 27, 2010, section 4019 provided for two-for-two presentence
conduct credit (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50,
p. 4428). Beginning October 1,
2011, section 4019 was amended to again provide for two-for-two presentence
conduct credit (Stats. 2011, ch. 15, § 482, p. 498 & Stats. 2011, ch. 39,
§ 53, p. 1731; Stats. 2011-2012, 1st Ex. Sess. 2011, ch. 12, § 35,
p. 5976).
Nunez was in custody 36 days from
August 23, 2010, through September 27, 2010, and 7 days from October 1, 2011,
through October 7, 2011, for a total of 43 days. Thus, based on the two-for-two formula pursuant
to the versions of section 4019 in effect during these time periods, these 43
days of presentence actual custody credit entitled Nunez to 42 days of
presentence conduct credit (43 days ÷ 2 = 21.5 days; 21 days x 2 = 42 days.)
From
September 28, 2010, through September 30, 2011, section 2933 provided for
one-for-one presentence conduct credit for defendants sentenced to prison
(Stats. 2010, ch. 426, § 1, p. 2087). During that time period Nunez was in custody
368 days. At one-for-one conduct credit,
this entitled Nunez to an additional 368 days of presentence conduct
credit. Therefore, from the date of
Nunez’s arrest on August 23, 2010, through the date of his sentencing hearing
on October 7, 2011, Nunez was entitled to 411 days of presentence actual
custody credit and 410 days of presentence conduct credit (42 days + 368 days =
410 days), for a total of 821 days of presentence custody credit (411 days +
410 days = 821 days).
Moreover, “[c]redit shall be given
only once for a single period of custody attributable to multiple offenses for
which a consecutive sentence is imposed.â€
(§ 2900.5, subd. (b); In re
Joyner (1989) 48 Cal.3d 487, 491.)
Thus, the court also erred when it awarded Nunez presentence custody
credit against the consecutive eight-month term it imposed in count 2.
The Enhancements
“Sentence
enhancements are generally of two types:
those which go to the nature or status of the offender, and those which
go to the nature or circumstances of the offense. [Citation.]
An enhancement which is based on the defendant’s conduct in committing
the charged offense, such as the personal use of a weapon or the infliction of
great bodily harm, is imposed on the count to which it applies. [Citation.]
Enhancements based on prior convictions are status enhancements. Because
they are related to the status of the offender, rather than the manner of
commission of a crime, they are applied only once, in arriving at an aggregate
sentence. [Citations.]†(People
v. Edwards (2011) 195 Cal.App.4th 1051, 1057, italics added, fn.
omitted.)
“The [prior
conviction] enhancements provided for in section 11370.2 are status
enhancements, in that they pertain to defendant’s status as a drug conviction
recidivist. [Citation.]†(
“Prior prison term enhancements are [also] status enhancements which can
be imposed only once, on the aggregate sentence. [Citation.]â€
(Id. at p. 1060.)
Nunez had
only two prior convictions for transportation or sale of a controlled substance. Therefore, the court erred when it imposed
more than two prior conviction enhancements pursuant to Health and Safety Code
section 11370.2. Similarly, since prior
prison terms are imposed only once in arriving at an aggregate sentence and
Nunez served only three prior prison terms, the court erred by imposing more
than three prior prison term enhancements.
Further,
“[u]nless a statute says otherwise, an enhancement may be imposed or stricken,
but ... may not be stayed; to do so is an illegal sentence. [Citation.]â€
(People v. Harvey (1991) 233 Cal.App.3d 1206, 1231, italics
added.) Therefore, the court also erred
when it stayed terms it imposed on some of the prior conviction and prior
prison term enhancements and on one of the arming enhancements.
Additionally, section 2 of Nunez’s
abstract of judgment is designated for listing enhancements that attach to
particular counts; whereas, section 3 is designated for listing enhancements
for prior convictions. Thus, the court
erred when it listed Nunez’s prior conviction enhancements in section 2, rather
than in section 3, of Nunez’s abstract of judgment.
Following
an independent review of the record we
conclude that with the exception of the issues discussed above, no other
reasonably arguable factual or legal issues exist.
DISPOSITION
Nunez’s
award of presentence custody credit as to counts 1, 3, and 4, is increased to
821 days as calculated above and his award of presentence custody credit as to
count 2 is stricken. Additionally, the
enhancements that were stayed by the trial court are also stricken. The trial court is directed to prepare an
amended abstract of judgment that is consistent with this opinion and to
forward a certified copy to the Department
of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
Wiseman, Acting P.J., Kane, J., and Detjen, J.
references are to the Penal Code.
