P. v. Smith

Filed 5/10/07 P. v. Smith CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Fraisure E. Smith appeals the presentence local custody credits awarded him after he pled no contest to assault with intent to commit rape (Pen. Code,  220),^[1]and admitted a prior strike ( 1170.12), and a prior prison term ( 667.5, subd. (b).) He contends the trial court breached his plea agreement by limiting his presentence conduct credits to 15 percent of the actual time he spent in local custody prior to entering his plea. We disagree and affirm.

Background

This is the second appeal in this case. Defendant was originally charged with sexual battery by restraint ( 243.4, subd. (a)) (count 1), false imprisonment by violence ( 236) (count 2), and annoying or molesting a child ( 647.6, subd. (a)) (count 3). The information also alleged that defendant suffered a prior strike conviction for rape ( 261, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served two prior prison terms ( 667.5, subd. (b)). Defendant pled no contest to the sexual battery charge in exchange for a stipulated seven-year prison term and the dismissal of the other charges. Subsequently, defendant successfully appealed the denial of his motion to withdraw his plea on grounds of ineffective assistance of counsel, and this court remanded for appointment of new counsel and a hearing on a renewed motion challenging the plea. (See People v. Smith (Oct. 12, 2005, A106401) [nonpub. opn.].)

On April 17, 2006, following remand, defendant withdrew his pending motion to withdraw his plea to sexual battery. Pursuant to a new plea agreement, counts 1 and 2 were dismissed^[2]and defendant pled no contest to an amended count 4 of assault with intent to commit rape ( 220), and admitted the prior rape strike and a prior prison term in exchange for a stipulated five-year prison term and dismissal of the other charges. The written plea agreement stated in part, I have been promised: [] Counts [1 and 2] on Information dismissed; I will receive a maximum of [five] years (with credits for time already served). Defendant agreed with the courts statement that he was doing this to avoid a greater punishment if [he] went to trial and were convicted of the original charges.

Defendant stated he wanted to be sentenced immediately, waived referral to the probation department and further arraignment for sentencing and was sentenced to five years in state prison. The court imposed a $1,000 restitution fine ( 1202.4, subd. (b)), and a $1,000 parole revocation fine ( 1202.45) to be suspended, unless parole is revoked. Defendant waived his right to be present at a May 9, 2006 hearing scheduled to determine presentence credits, and the matter was referred to the probation department for credit calculation.

The probation department calculated that defendant had actually served 364 days^[3]in jail and was entitled to 54 days of conduct credit, for a total of 418 days of presentence credit. The probation departments credits memo stated, The defendant is eligible for no more than 15 [percent] credits pursuant to [section] 1170.12, subd. (a)(5).^[4]

At the May 9, 2006 hearing, at which defendant was not present, the court, without objection, awarded defendant the recommended 418 days of presentence credit, comprised of 364 days for county jail time served and 54 days (15 percent of 364) of conduct credits. This appeal followed.

Discussion

Defendant contends that the 418 days presentence credits awarded subject to a formula limiting those credits to 15 percent of the actual days he served in jail violated his plea agreement, which provided that he would receive a maximum of [five] years (with credits for time already served) in exchange for his no contest plea to the section 220 offense. He argues that pursuant to his plea bargain he was entitled to a greater percentage of presentence conduct credits as calculated under section 4019.^[5] Thus, he contends he was entitled to 182 days of conduct credit instead of the 54 days of conduct credit awarded by the court.

Preliminarily, we reject the Peoples contention that defendant waived the issue by failing to object to the award of presentence conduct credits below. They concede that the sentencing court failed to advise defendant of his right to withdraw his plea pursuant to section 1192.5,^[6]and that our Supreme Court has held that [a]bsent a section 1192.5 admonition, we cannot assume the defendant knew he had a right to withdraw his plea. (People v. Walker (1991) 54 Cal.3d 1013, 1026.) However, the People argue that Walkeris distinguishable because defendant clearly did know of his right to withdraw his plea. They point to defendants February 2006 pro per motion to withdraw his prior plea to the sexual battery charge which stated that under section 1192.5, a court must confirm that there is a factual basis for a defendants plea before accepting it. They also assert that defendant was experienced in criminal proceedings, having been previously convicted of at least one strike and previously imprisoned.

Walker makes clear that Absent compliance with the section 1192.5 procedure, the defendants constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. (People v. Walker, supra, 54 Cal.3d at p. 1025.) The People cite no authority for the proposition that a defendants experience with criminal proceedings and knowledge of the requirements of section 1192.5 supplant the courts mandatory duty to inform the defendant of those requirements. In addition, a challenge to an award of presentence credit may be raised at any time. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8; accord, People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12.) We, thus, address the merits of defendants claim that his plea bargain was violated by the amount of custody credits awarded.

Generally, a defendant receives what are commonly called conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. ( 2900.5, 4019; People v. Thomas (1999) 21 Cal.4th 1122, 1125; see also In re Reeves (2005) 35 Cal.4th 765, 768, fn. 4 [explaining term conduct credit].) However, section 2933.1 reduces the amount of presentence conduct credit for those convicted of specified violent felonies, including assault with intent to commit rape. ( 2933.1, subd. (a), 667.5, subd. (c)(15); Reeves, supra, 35 Cal.4th at p. 768.) Subdivision (c) of section 2933.1 provides in part that the maximum credit that may be earned against a period of confinement . . . shall not exceed 15 percent of the actual period of confinement. Subdivision (d) provides that the credit limitation applies only to specified offenses that were committed after September 21, 1994.^[7]

This case turns on the fact that, as part of his current plea bargain, defendant pled guilty to assault with intent to commit rape, a charge that carries limited conduct credits under section 2933.1, subdivision (c), while in his initial plea bargain, defendant pled guilty to sexual battery, a crime that entitled him to greater credits under section 4019. Defendant argues that for all the jail time served prior to his postremand plea agreement, he bargained for and is entitled to receive conduct credit under section 4019. The thrust of his argument is that since he had initially earned presentence credits pursuant to section 4019 after being sentenced on his sexual battery plea, he could reasonably presume that, following the remand, section 4019 would continue to apply in calculating his conduct credit for the time he had spent in custody following the remand.

Defendant contends that the reference to credits in his plea agreement is ambiguous and might reasonably be construed to support his assertion that presentence credits were to be calculated under section 4019 or the Peoples assertion that his presentence credits were limited to those provided under section 2933.1, and, therefore, the circumstances surrounding his plea bargain must be considered. (See People v. Shelton(2006) 37 Cal.4th 759, 767-768.) Defendant argues that he understood the term in the agreement that he was to receive a maximum of [five] years (with credits for time already served) to mean that by withdrawing his plea to the sexual battery charge, and instead pleading no contest to assault with intent to commit rape, he would not lose any of the conduct credits he had already earned while incarcerated on the sexual battery conviction. He asserts that he was willing to enter the new plea to assault with intent to commit rape even though it would constitute a second strike because an award of at least 182 days of already-earned conduct credits would reduce the time he had left to serve by two years. He argues that if his credits were subject to the 15 percent limit, this bargained-for benefit would be diminished by more than 25 [percent].

Defendant asserts that had the prosecutor intended that conduct credits would be subject to the 15 percent limitation under section 2933.1, there would have been no need to include any language regarding credits in the plea agreement, since that is the least amount of credits provided in any of the determinate sentencing statutes. He argues that any ambiguity in the plea agreement must be interpreted in favor of the defendant. (See People v. Toscano (2004) 124 Cal.App.4th 340, 345.)

While we appreciate the creativity of defendants argument, we reject it as a matter of law. Defendants plea bargain states only that he would be entitled to presentence credit; it says nothing about how those credits would be calculated. We find nothing ambiguous about the terms of that agreement. By pleading no contest to assault with intent to commit rape, he was restricted under section 2933.1 to 15 percent conduct credit for his presentence time. [A] person who spends time in presentence (including pretrial) confinement and is eventually convicted of a violent offense may earn, as a credit against his prison sentence, no more than 15 percent of the actual time he spent in presentence confinement, regardless of the offenses for which he was charged. (In re Reeves, supra, 35 Cal.4th at p. 774.)

Defendants no contest plea to assault with intent to commit rape (an enumerated violent felony) resulted in the dismissal of his prior no contest plea to sexual battery with restraint (not an enumerated violent felony). By electing to plead no contest to an enumerated violent felony in exchange for the dismissal of his prior plea to an offense that was not an enumerated violent felony, defendant received a substantial reduction in his prison sentence but subjected himself to the mandatory 15 percent credit limitation on presentence credit. Nothing in the language of the plea agreement states that defendant entered the agreement in exchange for presentence credits calculated without being subject to the 15 percent limitation. And, of course, upon defendants conviction of the section 220 violent felony, an award of presentence credits calculated under section 4019 would have been unauthorized by law. In computing a defendants sentence pursuant to a plea bargain, the court may not give effect to presentence credits unauthorized by law, even though agreed to by the parties. (See In re Williams (2000) 83 Cal.App.4th 936, 945.)^[8]

We conclude that defendant has failed to establish that the courts calculation of defendants presentence conduct credit subject to a 15 percent limitation was improper and a violation of defendants plea bargain.^[9]

Disposition

The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections. The judgment is otherwise affirmed.

SIMONS, J.

We concur.

JONES, P.J.

GEMELLO, J.

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^[1] All undesignated section references are to the Penal Code.

^[2] The prosecutor represented that count 3 was dismissed based on defendants plea.

^[3] The probation department memo noted that defendant had actually served 63 days in local custody between February 14 to April 17, 2006, before being transferred to the Department of Corrections, and, following our decision in defendants initial appeal, 301 days in local custody from June 27, 2003 to April 22, 2004. Good conduct credit for the time served in state prison is to be determined by the Department of Corrections and is not a proper subject of this appeal.

^[4] Section 1170.12, subdivision (a)(5) provides: Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), the court shall adhere to each of the following: [] (5) The total amount of credits awarded pursuant to Article 2.5 [(Credit On Term of Imprisonment)] shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison. As we note post at fn. 7, the probation departments citation to this section was erroneous.

^[5] 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. [Citation.] [Citation.]  (People v. Philpot (2004) 122 Cal.App.4th 893, 908.)

^[6] Pursuant to section 1192.5, if a court approves a plea, it shall inform the defendant prior to making the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

^[7] As defendant notes, the probation department credit memos citation to section 1170.12, subdivision (a)(5) for the 15 percent credit limitation was erroneous since that provision of the three strikes law does not address presentence credits. (People v. Thomas, supra, 21 Cal.4th at p. 1125.) Instead, it limits to 20 percent postsentence conduct credits a three strikes defendant can earn while in prison custody. (Id. at pp. 1125-1126.) As defendant asserts, and the People apparently concede, because a conviction of assault with intent to commit rape is a violent felony subjecting a defendant to the 15 percent credit limitation under section 2933.1, the court in this case presumably intended to impose a 15 percent limitation on defendants presentence conduct credits pursuant to section 2933.1. We agree.

^[8] It is noteworthy that defendant does not assert that at the time he entered his plea he was unaware that assault with intent to commit rape is a violent felony subjecting a defendant convicted thereof to presentence conduct credit to the 15 percent limitation under section 2933.1. Were that the case, he could have attempted to withdraw his plea on the grounds that it was unknowing and involuntary.

^[9] We note that the abstract of judgment incorrectly has the section 4019 box checked regarding local conduct credits rather than section 2933.1, and thus must be corrected to reflect conduct credits calculated under section 2933.1.