P. v. Riggins
Filed 5/24/13 P. v. Riggins CA5
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. RONALD DAVID RIGGINS, Defendant and Appellant. | F064143 (Super. Ct. Nos. PCF183573C, PCF180529, VCF160024, VCF179686, VCF207817, VCF212599A, VCF213038B, VCF217989) O P I N I O N |
THE COURT
APPEAL from
a judgment of the Superior Court
of
County. Gary L. Paden,
Judge.
Mark J.
Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant, Ronald David Riggins,
was convicted by plea of numerous charges in eight Tulare County Superior Court
cases (cases A through H).
On August 7, 2009, the court sentenced Riggins in the eight
cases to an aggregate term of nine years eight months.
On November 10, 2011, the court denied Riggins’s request for
a modification of sentence/abstract of judgment.
On appeal Riggins contends: 1) he
is entitled to two additional days of presentence conduct credit in four cases
because the court committed a mathematical error; 2) he is entitled to four
additional days of presentence custody
credit in case No. PCF183573C (case A); and 3) the court erred by its
failure to award presentence conduct credit pursuant to the more generous
provisions of amended versions of Penal Code sections 4019
We will find that the court erred in its award of presentence custody
credit, albeit not for the reasons advanced by Riggins, and modify the judgment
accordingly. In all other respects, we
affirm.
FACTS
name="_ftnref3" title="">[2]
In case A, Riggins pled no contest
to sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and
admitted two on-bail enhancements (§ 12022.1) (case A).
In case No. PCF180529, (case B),
Riggins pled no contest to receiving stolen property (§ 496, subd. (a)).
In case No. VCF179686, (case C),
Riggins pled no contest to second degree burglary (§§ 459/460, subd. (b)).
In case No. VCF160024, (case D),
Riggins pled no contest to possession of methamphetamine, receiving stolen
property, being under the influence of methamphetamine (Health & Saf. Code,
§ 11550, subd. (a)), a misdemeanor, driving under the influence of alcohol or
drugs (Veh. Code, § 23152, subd. (a)), a misdemeanor, and driving on a
suspended license (Veh. Code, § 14601.1, subd. (a)),
In case No. VCF217989, (case E),
Riggins pled no contest to one count each of possession of forged items (§ 475,
subd. (c)), forgery (§ 470, subd. (a)), and multiple identifying
information theft (§ 530.5, subd. (c)(3)), and five counts of identity theft (§ 530.5,
subd. (a)), and he admitted three separate on-bail enhancements in each count,
except count 11
title="">[4] (§ 12022.1).
In case No. VCF213038B, (case F),
Riggins pled no contest to receiving stolen property and admitted an on-bail
enhancement.
In case No. VCF212599A, (case
G), Riggins pled no contest to five counts of being a felon in possession of a
firearm (§ 12021, subd. (a)(1)), and admitted five on-bail enhancements.
In case No. VCF207817, (case H),
Riggins pled no contest to possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a)).
On August 7, 2009, the court
sentenced Riggins in all eight cases to an aggregate term of nine years eight
months as follows: the middle term of
three years on his sale of a controlled substance conviction in case A, a
consecutive eight-month term on his conviction for receiving stolen property in
case B, a consecutive eight-month term on his conviction for second degree
burglary in case C, a consecutive eight-month term on Riggins’s conviction for
possession of a controlled substance in case D, a consecutive eight-month term
for Riggins’s conviction for receiving stolen property in case D, and two
2-year on-bail enhancements. The court
imposed concurrent two-year terms on each of Riggins’s remaining felony
convictions, struck the remaining on-bail enhancements, and sentenced him to
time served on his misdemeanor convictions.
DISCUSSION
The Alleged Mathematical Error in
Calculating
Presentence Custody Credit in Case A
On August 7, 2009, when the court sentenced Riggins, section
4019 provided that a defendant was entitled to two days of presentence conduct
credit for every four days he spent in presentence actual custody.
3941; Stats. 1982, ch. 1234, § 7, p. 4553.)
Based on this version of section 4019, the court awarded Riggins
presentence custody credit in cases A through H in the following amounts: 1) in
case A, 442 days of presentence custody credit consisting of 296 days of
presentence actual custody credit and 146 days of presentence conduct credit;
2) in case B, a day of presentence custody credit; 3) no presentence custody
credit in case C; 4) in case D, one day of presentence custody credit which it credited
against one of the eight-month terms it imposed in that case; 5) in cases E, F,
and G, 239 days of presentence custody credit consisting of 161 days of
presentence actual custody credit and 78 days of presentence conduct credit
which it awarded against each of the two-year concurrent terms it imposed in
those cases; and 6) in case H, 242 days of presentence custody credit
consisting of 162 days of presentence actual custody credit and 80 days of
presentence conduct credit, which it awarded against the two-year concurrent
term it imposed in that case.
Riggins
contends that the trial court committed a mathematical error in calculating his
presentence custody credit in case A and that he is entitled to an additional
two days of presentence conduct credit in that case.
calculating Riggins’s presentence custody credit in cases A, E, F, G and H, as
discussed below.
In
523 the court explained how presentence conduct credit should be calculated
pursuant to the version of 4019 in effect when Riggins was sentenced:
“‘…
4019, specifies how prisoners may obtain certain credits. Subdivisions (b) and
(c) of that section provide: “for each six-day
period in which a prisoner is confined in or committed to a specified
facility†one day shall be deducted from his period of confinement for
performing labors, and one day shall be deducted for compliance with the rules
and regulations of the facility.
Subdivision (f) of that section provides “if all days are earned under
this section, a term of six days will be deemed to have been served for every four
days spent in actual custody.â€
(Italics added.)’
[Citation.]†(
Using this formula, the actual days
of presentence custody are divided by four, the quotient is rounded down to the
nearest whole number, and then it is multiplied by two.
Riggins contends that based on the
296 days of presentence actual custody credit the court awarded him in case A,
it should have awarded him two additional days of presentence conduct credit in
that case, i.e., 148 days instead of 146.
However, the record indicates that Riggins was in presentence custody
only 295 days in case A.
name="_ftnref8" title="">[7] Further, based on these 295 days Riggins was
entitled to only 146 days of presentence conduct credit (295 days ÷ 4 = 73.75
days; 73 days x 2 = 146 days) and a total of only 441 days of presentence
custody credit (295 days + 146 days = 441 days).
Moreover, our review of the record
disclosed that the court erred in its award of presentence custody credit in
cases E through H. In case E, Riggins
was in custody 160 days from March 1,
2009, through August 7,
2009. Therefore, in case E
he was entitled to 80 days of presentence conduct credit for a total of 240
days of presentence custody credit (160 days ÷ 4 = 40 days; 40 days x 2 = 80
days; 160 days + 80 days = 240 days).
In cases F and G, Riggins served
the same days in presentence custody as in case E and two additional days from February 19, 2009, to February 20, 2009. Therefore in each of those cases he was
entitled to 242 days of presentence custody credit (160 days + 2 days = 162
days; 162 days ÷ 4 = 40.5; 2 x 40 days = 80 days; 162 days + 80 days = 242
days).
In case H, Riggins served the same
days in custody as in cases F and G and an additional day on August 11, 2008. Therefore in case H he is entitled to 243
days of presentence custody credit (162 days + 1 day = 163 days; 163 days ÷ 4 =
40.75 days; 2 x 40 days = 80 days; 163 days + 80 days = 243 days).
Riggins is not Entitled to
Presentence Custody Credit in Case A
Days in Custody that are not Attributable to that Case
In case D
the court awarded Riggins one day of presentence custody credit for the day he
was in custody on February 13, 2006. In case B the court awarded Riggins one day
of presentence custody credit for the day he was in custody on February 16, 2007. Riggins committed the offenses underlying
case A on May 9, 2007. Nevertheless, Riggins cites
1278 (Culp) to contend that he is
entitled to credit for the above two days in case A even though his custody on
those two days is not attributable to his commission of the offenses underlying
case A. He further contends that with
the addition of these two days to case A, he is entitled to two additional days
of presentence conduct credit in that case.
Section 2900.5, subdivision (b)
provides in full: “For the purposes of
this section, credit 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. Credit shall be
given only once for a single period of custody attributable to multiple
offenses for which a consecutive sentence is imposed.†(Ibid., italics added.) In
limit credit to situations where the custody is ‘exclusively’ attributable to a
charge of which a defendant is later convicted, ‘it is clearly provided that credit is to be given “only where†custody
is related to the “same conduct for which the defendant has been convicted.â€â€¦â€™ [Citation.]â€
(Id. at p. 21.)
Here, the
two days of presentence actual custody Riggins seeks credit for in case A
are not attributable to the same conduct for which he was convicted of in case
A. Therefore, it is clear from the plain
meaning of the statute and the Supreme Court’s Marquez decision that Riggins is not entitled to credit in case A
for the two days he served in presentence custody in cases B and D or to two
additional days of corresponding conduct credit.
Further,
even if we were not bound by the decisions of the Supreme Court (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) or the plain
language of the statute, Culp, supra, 100
Cal.App.4th 1278 would not compel a different conclusion. In Culp
this court held that the trial court erred by its failure to aggregate two
noncontinuous periods that the defendant spent in presentence custody when
calculating his presentence custody credit.
(Id. at p. 1284.) However, Culp
is easily distinguishable because it involved only one case and the two periods
of custody that were aggregated in Culp
were attributable to the same criminal
conduct that the defendant was convicted of in that case. (Id.
at pp. 1280, 1284.)
Riggins is not Entitled to a
Recalculation of his Presentence Custody
Pursuant to Amendments to Sections 4019 and 2933 that
made to these Sections Since he was Sentenced in 2009
As noted earlier, in 2009 when
Riggins was sentenced, section 4019 provided that defendants in presentence
custody could earn two days of conduct credit for every four days they were in
custody. For eight months beginning on January 25, 2010, a now superseded
version of section 4019 provided that eligible prisoners could earn two days of
conduct credit for every two days in custody.
(Stats. 2009-2010, 3d. Ex. Sess., ch. 28, § 50, p. 4428). Section 4019 was subsequently amended
effective September 28, 2010,
to again provide that an inmate would earn two days of conduct credit for every
four days in custody. (Stats. 2010, ch.
426, § 2, p. 2088.) Effective October 1, 2011, the statute again
provided eligible presentence prisoners with two days of conduct credit for
every two days in custody. (Stats.
2011-2012, 1st Ex. Sess. 2011, ch. 12, § 35, p. 5976.)
Effective September 28, 2010, section 2933 was amended to
include a subdivision (e) which provided that an eligible defendant sentenced
to prison could receive one day of conduct credit for every day he was in
presentence custody. (Stats. 2010, ch.
426, § 1, p. 2087.)
name="_ftnref10" title="">[9]
Riggins contends that equal
protection requires that he receive enhanced presentence conduct credit
pursuant to the above noted amendments to sections 4019 and 2933 for all of his
offenses. Riggins is wrong.
In People v. Brown (2012) 54 Cal.4th 314 (Brown) the Supreme Court held that prisoners who served time before
and after the January 25, 2010, amendment to former section 4019 took effect
are not similarly situated because “the important correctional purposes of a
statute authorizing incentives for good behavior [citation] are not served by
rewarding prisoners who served time before the incentives took effect and thus
could not have modified their behavior in response.†(Brown,
supra, at pp. 328-329.) Thus, the court rejected the defendant’s
claim that denying the enhanced conduct credit provided by this amendment to
prisoners who served their time before its effective date violated equal
protection principles. (
claim.
Riggins’s Abstract of Judgment
The court imposed two on-bail
enhancements in case A and struck 26 on-bail enhancements in cases E and
G. Riggins’s abstract of judgment lists
the stricken enhancements in section 2.
This was error because section 2 states that stricken enhancements
should not be listed in that section and we will direct the trial court to
issue a corrected abstract of judgment.
DISPOSITION
Riggins’s
award of presentence custody credit in each of the following cases is modified
as noted: in case A, Riggins’s
presentence custody credit is reduced from 442 days to 441 days as calculated
above; in case E, Riggins’s award of presentence custody credit is increased
from 239 days to 240 days; in cases F and G, Riggins’s award of presentence
custody credit is increased from 239 days to 242 days as calculated above; and
in case H, Riggins’s award of presentence custody credit is increased from 242
days to 243 days as calculated above.
The trial court is directed to file an amended abstract of judgment that
does not list the stricken on-bail enhancements and is otherwise consistent
with this opinion and to forward a certified copy to the
unless otherwise indicated.
