P. v. Pimental

Filed 9/28/06 P. v. Pimental CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Juan Manuel Pimental was convicted by plea of one count of second degree robbery (Pen. Code, § 211) [1] with an enhancement for committing the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court suspended imposition of sentence and ordered five years formal probation, subject to various conditions. After defendant committed a series of probation violations, the court revoked his probation, sentenced him to 15 years in state prison, and awarded him 365 days of custody credits.

On appeal, defendant contends the court erred when it imposed a $3,000 restitution fine and a $3,000 parole revocation restitution fine. We conclude the court erred in imposing fines in these amounts and modify the judgment to reduce the amounts of the fines. Defendant also asserts the trial court erred in calculating his custody credits and that he is entitled to additional credits for the period August 27, 2005, through October 21, 2005. We conclude defendant is entitled to additional custody credits and modify the judgment accordingly.

Facts

On September 27, 2003, defendant approached two men who were sitting in a parked car, knocked on the car window with a semi-automatic handgun, and, after asking about gang affiliation, demanded their money. When they told him they did not have any money, he took their leather jackets and a gold ring. Defendant told a police officer he was a member of the Sureno gang.

Procedural History

I. Charges, Plea Agreement and Original Sentence

Defendant was charged with two counts of second degree robbery (§ 211) with enhancements for personal use of a firearm (§ 12022.5, sub. (a)) and acting for the benefit of a street gang (§ 186.22, subd. (b)(1)) on each count.

In April 2004, defendant pleaded nolo contendere to one of the robbery counts and admitted one of the gang enhancements on the condition that he receive felony probation. The court advised him that he faced a maximum penalty of 15 years in prison plus three years on parole.

On May 13, 2004, the court suspended imposition of sentence and placed defendant on formal probation for five years on the condition that he serve 365 days in jail. The court ordered defendant to pay a restitution fine of $200 (§ 1202.4, subd. (b)), and imposed other conditions of probation. The court dismissed the remaining charges and enhancements. At that time, defendant was awarded 324 custody credits for 216 actual days in custody plus 108 days good time/work time days.

II. First and Second Probation Violations

In July 2004, the prosecution filed a petition to suspend, revoke or modify probation, which was dismissed because of evidentiary problems. Probation was reinstated on the same terms and conditions. Defendant spent 16 days in jail while the petition was pending.

In August 2004, the prosecution filed a second probation violation petition alleging defendant had violated probation by using drugs. Defendant admitted the violation. The court ordered defendant to Kern State Prison for a 90-day diagnostic study.

III. Sentencing on Second Probation Violation

At the sentencing hearing on the second probation violation on December 3, 2004, defendant asked the court to continue his probation and order drug treatment. The probation officer advised the court that defendant had accumulated 570 custody credits since his initial incarceration, consisting of 380 actual days and 190 good time/work time credits. The court inquired whether defendant was prepared to waive credits over 365 days and defense counsel indicated that he was. The court addressed defendant, stating “The first step will be that you need to agree to waive all credits over 365 that you have accumulated. That would be a permanent waiver. Those would be lost forever. That applies to even any future prison commitment. Do you agree to waive any credits over 365 days?” Defendant agreed to waive the credits.

The court reinstated and modified defendant’s probation. The court imposed the upper term of five years for the robbery conviction plus 10 years for the admitted gang enhancement, for a total of 15 years. The court suspended execution of sentence for the remainder of probation. The court ordered defendant to serve 400 days in jail, with credit for 365 days, followed by a residential drug treatment program.

IV. Third and Fourth Probation Violations

In April 2005, the prosecution filed a third probation violation petition, alleging defendant violated probation when he was terminated from the drug treatment program. Defendant failed to appear for the hearing on the petition and a bench warrant issued for his arrest.

In August 2005, the police responded to a domestic violence call at the home of defendant’s girlfriend and found defendant hiding inside a closet. Defendant gave a false name and other false identifying information, but the officer learned defendant’s real name and arrested him.

The prosecution filed a fourth probation violation petition. The court held a formal hearing and found defendant in violation of probation for failing to report to his probation officer, giving false information to a police officer, failing to complete the drug treatment program, and drinking alcohol.

On October 21, 2005, the court revoked and terminated probation and sentenced defendant to 15 years in prison (five years for the robbery plus 10 years for the gang enhancement). The court awarded defendant 365 custody credits based on 318 actual days and 47 conduct credits. The court ordered defendant to pay a restitution fine of $3,000 and imposed a parole revocation restitution fine of $3,000. The prosecution dismissed the false personation charges. Defendant appeals.

Discussion

I. Restitution Fines

When the court originally granted probation on May 13, 2004, it imposed a $200 restitution fine under section 1202.4, subdivision (b). At that time, the court did not order a corresponding parole revocation restitution fine under section 1202.45. When the court revoked probation and imposed a prison sentence on October 21, 2005, it imposed a $3,000 restitution fine under section 1202.4 and a corresponding $3,000 parole revocation restitution fine under section 1202.45.

Defendant contends the $3,000 restitution fine (§ 1202.4) imposed on October 21, 2005, must be stricken because the $200 fine imposed when probation was originally granted remained in full force and effect. He also asserts that the $3,000 parole revocation restitution fine (§ 1202.45) must be reduced to $200, the same amount as the original restitution fine. The Attorney General concedes that a trial court cannot impose a second restitution fine upon revocation of probation, that the $3,000 restitution fine must be stricken, and that the $3,000 parole revocation fine must be reduced. We agree with the concession.

The imposition of a restitution fine at the time of conviction and granting of probation survives subsequent probation revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823 (Chambers); People v. Downey (2000) 82 Cal.App.4th 899, 921.) Here, as in Chambers, the trial court lacked statutory authority to impose the additional $3,000 restitution fine because the $200 restitution fine imposed at the time of defendant’s conviction remained in force despite the later revocation of defendant’s probation.

When the court imposes a sentence that includes a period of parole, as in this case, it is required to assess a parole revocation restitution fine “in the same amount as that imposed pursuant to subdivision (b) of section 1202.4.” (§ 1202.45.) Since the only lawful restitution fine in effect was the original $200 fine, the parole revocation restitution fine must be reduced to $200.

We will modify the judgment accordingly. (Chambers, supra, 65 Cal.App.4th at p. 823.)

II. Custody Credits

Defendant contends he is entitled to additional presentence credits for the period of custody following his arrest in August 2005, because his December 2004 credit waiver only applied to the credits that had accrued up until that point in time and that he did not knowingly and intelligently waive future credits.

The Attorney General argues that defendant forfeited any claim of error relating to his custody credits by failing to object in the trial court and that his counsel invited the error by telling the court that he had waived any credits over 365. He also asserts that defendant is not entitled to additional credits because he has not demonstrated that the custody following his arrest on August 27, 2005, was attributable solely to the revocation proceedings. Finally, on the merits, he argues that defendant’s waiver applied to the credits at issue. We begin by addressing the forfeiture and invited error issues.

A. Forfeiture

The Attorney General argues that defendant has forfeited any claim of error related to the calculation of his custody credits because he failed to object to the amount of credits awarded in the trial court. Defendant contends that the deprivation of custody credits that he challenges on appeal is an “unauthorized sentence,” which can be challenged at any time.

The California Supreme Court discussed forfeiture in People v. Smith (2001) 24 Cal.4th 849, 852, stating: “As a general rule, only ‘claims properly raised and preserved by the parties are reviewable on appeal.’ [Citation.] We adopted this waiver rule ‘to reduce the number of errors committed in the first instance’ [citation], and ‘the number of costly appeals brought on that basis’ [citation]. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant. [Citation.] Thus, all ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review.”

The California Supreme court had “created a narrow exception to the waiver rule for ‘ “unauthorized sentences” or sentences entered in “excess of jurisdiction.” ‘ [Citation.] Because these sentences ‘could not lawfully be imposed under any circumstance in the particular case’ [citation], they are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ [Citation.] [The court] deemed appellate intervention appropriate in these cases because the errors presented ‘pure questions of law’ [citation], and were ‘ “clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (People v. Smith, supra, 24 Cal.4th at p. 852.) We conclude defendant’s claim of error regarding the calculation of his custody credits falls within the exception to the forfeiture rule, since there is no factual issue as to the amount of time served and the claim involves a legal interpretation of the terms of the waiver. We therefore reject the Attorney General’s forfeiture argument.

B. Invited Error

The Attorney General also argues defendant invited the error relating to the custody credits when his attorney told the court he was limited to 365 days of custody credit at the time of sentencing. He argues that defendant never contradicted his attorney’s numerous assertions that he was limited to 365 days of credit. Defendant contends that his attorney’s remarks did not constitute invited error and merely show that his attorney was mistaken about the scope of his previous waiver of custody credits.

The doctrine of invited error operates to estop a party from asserting an error when his or her own conduct induces the commission of error. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.) “ ‘The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.’ In cases involving an action affirmatively taken by defense counsel, [our state Supreme Court has] found a clearly implied tactical purpose to be sufficient to invoke the invited error rule.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 (Coffman).)

The court had the following discussion with defense counsel regarding custody credits at the sentencing hearing after the last probation violation:

“THE COURT: I did get his - I thought I got his updated credits earlier.

“MR. KLEINKOPF [(Defense counsel)]: [The probation officer] mentioned that there had been a waiver beyond 365.

“THE COURT: Right.

“MR. KLEINKOPF: So there would be 365 credits.”

Later, after asking the court to give defendant one more chance at probation, defense counsel stated, “He’s already waived everything over a year. Which is like four or five additional months.”

The supplemental probation report that was prepared for the October 21, 2005 hearing did not mention the previous waiver of custody credits. There is no evidence that the transcript of the December 3, 2004 hearing at which the waiver was taken was available to the court or the parties. The minute order for the December 3, 2004 hearing states that “Defendant waives any good time/work time credits over 365 for all purposes, including any future prison commitment.” However, the minute order is incorrect. At the time of the waiver, the probation officer reported that defendant had 380 credits for actual time served and 190 conduct credits. Defendant did not have more than 365 good time/work time credits. Thus, the waiver of credits over 365 days was not limited to conduct credits over 365 days; it encompassed both credits for actual time served and conduct credits.

It is not clear from this record that “ ‘counsel acted for tactical reasons and not out of ignorance or mistake.’ “ (Coffman, supra, 34 Cal.4th at p. 49.) Although it might be argued that defense counsel had a tactical reason to waive additional credits accumulated after the previous waiver to persuade the court to continue defendant on probation, this record also supports the conclusion that defense counsel was simply mistaken regarding the scope of the previous waiver. We therefore conclude that any error regarding the calculation of defendant’s custody credits was not invited error.

C. Custody Was Attributable to Probation Violation

The Attorney General argues that defendant is not entitled to additional credits because he has not demonstrated that the custody following his arrest on August 27, 2005, was attributable solely to the revocation proceedings.

The California Supreme Court addressed this issue in In re Marquez (2003) 30 Cal.4th 14, 20-24. The defendant in Marquez was convicted of separate offenses, first in Santa Cruz County and later in Monterey County. His Santa Cruz conviction was reversed on appeal and later dismissed. The defendant sought presentence credit against the Monterey County conviction for the time he spent in custody between his conviction in Santa Cruz and sentencing in Monterey. The court held that he was entitled to the credits. The court reasoned that when Monterey placed a hold on the defendant, his time in custody was attributable to charges in both counties. Once the Santa Cruz charges were reversed and dismissed, the time became attributable to the Monterey County charge in light of the custody hold. (Id. at pp. 23-24.)

When he was arrested on August 27, 2005, defendant had an outstanding bench warrant based upon his failure to appear at the hearing on the petition alleging a third violation of probation. According to the probation report, he was arrested for violating probation, for false personation, and on the outstanding bench warrant. The record supports the conclusion that at the time of his arrest, defendant was arrested both in conjunction with the proceedings in this case and on the new false personation charges. The false personation charges were dismissed when defendant was sentenced to prison in this case. As in Marquez, once the false personation charges were dismissed, the new period of incarceration became attributable solely to the proceedings in this case. Under these circumstances, defendant is entitled to credit for the custody from August 27, 2005, forward in this case.

D. Defendant is Entitled to Additional Credits

Criminal defendants convicted of felonies are entitled to credit for time spent in custody prior to sentencing (§ 2900.5) and credit for good conduct and work performed during pre-sentence custody (§ 4019). “[I]t is the duty of the sentencing court to calculate actual days spent in custody pursuant to section 2900.5, subdivision (d).” (People v. Thornburg (1998) 65 Cal.App.4th 1173, 1175-1176, disapproved on other grounds in People v. Buckhalter (2001) 26 Cal.4th 20, 39-40.) When the facts are undisputed, a defendant’s entitlement to custody credits presents a question of law for the appellate court’s independent review, since the trial court has no discretion in awarding custody credits. (People v. Shabazz (1985) 175 Cal.App.3d 468, 473.)

In People v. Johnson (2002) 28 Cal.4th 1050 (Johnson), the California Supreme Court held that a defendant may, as a condition to being reinstated on probation, waive custody credit against a jail or prison sentence. (Id. at pp. 1053-1055.) Such waivers are commonly referred to as “Johnson“ waivers. (People v. Jeffrey (2004) 33 Cal.4th 312, 315 (Jeffrey), referring to People v. Johnson (1978) 82 Cal.App.3d 183.) The Johnson waiver enables the sentencing court to reinstate a defendant on probation after he or she has violated probation one or more times, conditioned on service of additional county jail time, as an alternative to imposing a state prison sentence, without running afoul of the sentencing proscriptions of section 19.2.[2] (Jeffrey, at pp. 315, 316.)

“As with the waiver of any significant right by a criminal defendant, a defendant’s waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent. [Citation.] Because a defendant may give up the statutory right to custody credits, a trial court has discretion to condition a grant or extension of probation upon a defendant’s express waiver of past and future custody credits.” (Johnson, supra, 28 Cal.4th at p. 1055, fn. omitted.)

We review the validity of a Johnson waiver in light of the totality of circumstances. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1554, fn. 1; cf. People v. Howard (1992) 1 Cal.4th 1132, 1175.)

Defendants may waive future custody credits, as well as those that have already accrued. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921 (Ambrose).) As a condition of probation, a court may require a Johnson waiver of not only presentence custody, which a defendant has already earned, but also future custody credit, which he or she may subsequently earn. (Johnson, supra, 28 Cal.4th at pp. 1054-1055.) However, to find a valid waiver of future credit here, we must find that defendant understood that his waiver would carry that consequence. (People v. Thurman (2005) 125 Cal.App.4th 1453, 1460 [court may condition probation on waiver of credit “as long as the defendant’s waiver is ‘knowing and intelligent’ in the sense that it was made with awareness of its consequences”]; People v. Salazar, supra, 29 Cal.App.4th at p. 1554, fn. 1; Ambrose, supra, 7 Cal.App.4th at p. 1922; People v. Harris (1987) 195 Cal.App.3d 717, 725, disapproved on other grounds in People v. Arnold (2004) 33 Cal.4th 294, 308; see Johnson, supra, 28 Cal.4th at p. 1055.)

Courts have upheld waivers of future credit in numerous cases. However, in each and every case, the record clearly and unequivocally revealed that the defendant knew he or she was waiving future credit. (Jeffrey, supra, 33 Cal.4th at p. 316; Johnson, supra, 28 Cal.4th at p. 1052; People v. Thurman, supra, 125 Cal.App.4th at p. 1457; People v. Bowen (2004) 125 Cal.App.4th 101, 108-109; People v. Juarez (2004) 114 Cal.App.4th 1095, 1099; People v. Torres (1997) 52 Cal.App.4th 771, 773, 775; People v. Penoli (1996) 46 Cal.App.4th 298, 301-302; Ambrose, supra, 7 Cal.App.4th at p. 1920.)

Defendant’s challenge to the award of custody credits requires us to review the terms and scope of defendant’s waiver at the December 3, 2004 hearing. Just before the court took the waiver, the probation officer advised the court that defendant had accumulated 570 custody credits consisting of 380 actual days served plus 190 conduct credits.[3] The court asked whether defendant was prepared to waive credits over 365 days and defense counsel stated that he was. The court then addressed defendant, stating “The first step will be that you need to agree to waive all credits over 365 that you have accumulated. That would be a permanent waiver. Those would be lost forever. That applies to even any future prison commitment. Do you agree to waive any credits over 365 days?” (Italics added.) Defendant agreed to waive the credits.

The language italicized above indicates that the Johnson waiver was to apply only to credits defendant had accumulated as of the date of the waiver. Although the court advised defendant that the waiver would apply to any future prison commitment, nothing in the record suggests that the waiver applied to any future credits that defendant might accrue. The probation report did not discuss future credits. Neither the parties nor the court discussed future credits. Nothing in the record suggests that the loss of future credits would be a consequence of defendant’s waiver or that such a waiver was a condition for his reinstatement on probation. Consequently, in the absence of evidence indicating that such a consequence was expressly or implicitly conveyed to defendant and he understood it, we do not find that defendant knowingly and intelligently waived credit for future periods of incarceration. Thus, the court erred in denying defendant custody credits for the time served after his arrest for the third probation violation.

According to the probation report, defendant was in custody from the time of his arrest on August 27, 2005, until October 21, 2005 (56 days). In our view, defendant should receive credit for this 56-days period of incarceration, in addition to the 365 credits he did not waive at the December 3, 2004 hearing. We will order the court to modify the judgment based on the following calculations to award defendant additional custody credits.

The trial court awarded defendant 365 days of presentence custody credits for the period prior his August 27, 2005 arrest. When it sentenced defendant on October 21, 2005, the court allocated those credits as follows: 318 actual days and 47 conduct credits. In addition, defendant is entitled to 56 credits for actual time served between August 27, 2005, and October 21, 2005. Fifty-six actual days plus the existing 318 actual days is 374 actual days.

Defendant is also entitled to conduct credits equal to 15 percent of actual time served pursuant to section 2933.1. Fifteen percent of 374 is 56.1. We round that number down to 56 and award defendant 56 conduct credits. (People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.) In summary, defendant is entitled to 430 custody credits: 374 credits for actual time served and 56 conduct credits.

Disposition

The court is directed to modify the judgment and award defendant 430 custody credits: 374 credits for actual time served and 56 conduct credits. The court is directed to modify the judgment further by striking the $3,000 restitution fine imposed at the October 21, 2005 sentencing hearing. The $200 restitution fine imposed on May 13, 2004, remains in force. The court is also directed to modify the judgment by reducing the parole revocation restitution fine from $3,000 to $200. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Mihara, J.

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[1] All further statutory references are to the Penal Code, unless otherwise stated.

[2] Section 19.2 provides in relevant part: “In no case shall any person sentenced to confinement in a county or city jail, . . , on conviction of a misdemeanor, or as a condition of probation upon conviction of either a felony or a misdemeanor, . . , be committed for a period in excess of one year; . . .”

[3] During the initial sentencing hearing on May 13, 2004, and the sentencing hearing on the second petition to modify probation on December 3, 2004, the probation officer calculated conduct credits using the formula set forth in section 4019. (See e.g., People v. Smith (1989) 211 Cal.App.3d 523, 527 [divide number of actual days in custody by four, discard any remainder, and multiply resulting whole number by two].) At the final sentencing hearing on October 21, 2005, the probation officer calculated conduct credits using the 15 percent limitation in section 2933.1. Since defendant was convicted of second degree robbery and robbery is one of the offenses listed in section 667.5, the 15 percent limitation in section 2933.1 applies. (§§ 667.5, subd. (c)(9), 2933.1.) The calculation of the number of conduct credits does not affect our analysis here.