Filed 11/28/18 P. v. Terry CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE,
Plaintiff and Respondent,
v.
GREGORY TERRY,
Defendant and Appellant.
| D073389
(Super. Ct. No. SCD272653) |
APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Meredith White and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Gregory Terry stole a car and led officers on a high-speed chase. In this single-issue appeal, he argues the trial court erroneously denied him credits at sentencing under Penal Code sections 2900.5 and 4019 for two separate periods of presentence detention.[1] The first period was for a PRCS "flash incarceration" commencing on October 6, 2017;[2] the second was a five-day period leading up to the sentencing hearing on November 7.
Terry was entitled to credit only if he could show that his presentence incarceration during those two periods was the result of the same conduct for which he was convicted and sentenced. As we explain, by failing to raise a specific objection as to October 6, Terry forfeited any claim to credit for that date. Even otherwise, he did not meet his burden as to any of the claimed dates to show that he was incarcerated for the "same conduct" for which he was sentenced (i.e., car theft and evading officers). Because the trial court properly denied Terry credit for the days in question, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Terry was on postrelease community supervision (PRCS) in connection with an unrelated case when, on July 1, 2017, he stole a car and led police officers on a high-speed chase. He was arrested that day and charged with violating the conditions of his PRCS supervision case. In August, Terry admitted to violating the conditions of his PRCS and agreed to serve 157 days concurrently with his sentence for the convictions related to the car theft in this case.
On August 2, the San Diego County District Attorney charged Terry by information with: (1) evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 1); (2) unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a), count 2); (3) buying, receiving, concealing, selling, and withholding of a stolen vehicle (§ 496d, count 3); and (4) resisting an officer (§ 148, subd. (a)(1), count 4).
On September 13, Terry pled guilty to counts 1 and 2, and he admitted one strike prior under sections 667, subdivisions (b) through (i), 668, and 1170.12. Terry posted bail on September 17, 2017. He was in custody for a total of 79 days, from July 1 to September 17. While on bail, he was remanded to custody on October 6 for a "flash incarceration." On October 20, a warrant issued for Terry's arrest due to his failure to report to his PRCS officer. He was arrested pursuant to that warrant on November 3 and in custody for five days until November 7, the date of his sentencing hearing in this case.
On November 7, the court sentenced him to five years and four months in prison, pursuant to his plea agreement. It awarded 79 days of presentence custody credit under section 2900.5 for his time in custody from July 1 to September 17 and 78 days of conduct credit under section 4019, totaling 157 days.
DISCUSSION
Terry argues the court erred in denying him presentence custody and conduct credits for his incarceration on October 6 and November 3 through 7. To the extent the contention is preserved, we conclude substantial evidence supports the trial court's finding that he was not in custody during these periods for the same conduct for which he was convicted and sentenced in this case. (§ 2900.5, subd. (b).) Accordingly, we affirm its award of 157 total days of credit.
1. Legal principles
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct." (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) Sections 2900.5 and 4019 govern the award of presentence credits. "Penal Code section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but 'only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted' (subd. (b), italics added)." (People v. Bruner (1995) 9 Cal.4th 1178, 1180 (Bruner).) In addition, prisoners receiving a determinate sentence are eligible for up to two days of conduct credits for every two days of presentence custody. (§ 4019, subds. (a)(4), (b), (c), (e) & (f); People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358.)
At sentencing, the trial court must determine the actual custody and conduct credits to be awarded against the sentence "and reflect the total in the abstract of judgment." (Buckhalter, supra, 26 Cal.4th at p. 30; § 2900.5, subd. (d); Cal. Rules of Court, rule 4.310.) Courts have interpreted the "same conduct" requirement in section 2900.5, subdivision (b) to require strict causation, meaning that a defendant may earn presentence credit only if the presentence custody was strictly caused by the same conduct for which he or she is to be sentenced. (Bruner, supra, 9 Cal.4th at pp. 1193–1194; In re Joyner (1989) 48 Cal.3d 487, 492–493; In re Rojas (1979) 23 Cal.3d 152, 155−156.)[3]
Critically for purposes of Terry's appeal, it is the defendant who bears the burden to establish strict causation before the sentencing court. (Bruner, supra, 9 Cal.4th at p. 1191 ["a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period"]; People v. Purvis (1992) 11 Cal.App.4th 1193, 1195 [defendant bears the burden to show but-for causation]; In re Nickles (1991) 231 Cal.App.3d 415, 424 [same]; People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258 ["the burden is on the accused to establish entitlement to presentence custody credit"].)
The parties dispute the applicable standard of review. Terry urges de novo review, arguing this case rests on statutory interpretation of sections 4019 and 2900.5, subdivision (b). The People argue these statutes grant the court discretion in determining presentence credits, warranting review for abuse of that discretion. We believe that neither standard applies.[4] Whether Terry was incarcerated on October 6 and November 3 through 7 for reasons relating to the car theft is a factual question, and we apply the familiar substantial evidence standard of review to assess the trial court's finding. (See People v. Darnell (1990) 224 Cal.App.3d 806, 809 [substantial evidence supported factual finding that placement in an alcohol rehabilitation center was custodial under section 2900.5]; see generally, People v. Downey (2000) 82 Cal.App.4th 899, 917 [trial court sentencing determinations are subject to substantial evidence review].)
2. Forfeiture
The People argue Terry forfeited his claim to additional presentence credit on appeal by failing to object or make an offer of proof in the trial court. Pursuant to section 1237.1, Terry was required to present a credit calculation challenge before the trial court at sentencing or in a post-sentencing motion to preserve the claim for appeal.[5] Plainly, there was no forfeiture as to the November 3 through 7 period. Defense counsel presented that claim "at the time of sentencing" when he asked the court to award credits for that five-day period (§ 1237.1). The court declined the request, finding the November period involved "a flash incarceration for conduct separate and apart from this offense." But we reach a different conclusion as to the October 6 claim. When the court rejected presentence credit for the November period, Terry's attorney did not press the credit issue as to October 6 or move to correct the alleged error after sentencing, thereby forfeiting review.[6] In any event, as we explain, the trial court properly denied credit for all dates in question on the record Terry presented.
3. Presentence credits for November 3 to 7
Terry argues he is entitled to presentence credits for the period he was in custody from November 3 until November 7, the date of his sentencing hearing. We conclude substantial evidence supports the trial court's finding that he was not.
As a probation officer explained during the sentencing hearing, Terry was arrested on November 3 because he failed to report to his PRCS officer. That infraction was wholly unrelated to Terry's July 2017 car theft. Terry's attorney argued he would "just like to see [Terry] get some credits for the time he spent in custody." But because events surrounding the car theft did not in any way (much less strictly) cause Terry's November incarceration, he was not entitled to presentence credits for those dates. In other words, because Terry did not show that his November custody was in any way attributable to the events surrounding the car theft, the court appropriately denied presentence credits for those dates. (Bruner, supra, 9 Cal.4th at p. 1194; § 2900.5, subd. (b).)[7]
Terry counters that he should at least receive credit for November 7, the sentencing date. Typically, a defendant who is in custody between conviction and sentencing is entitled to presentence credit for the partial date of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) But Smith does not alter the strict causation rule; its reasoning applies only where a defendant is in custody on the sentencing date because of the "same conduct" underlying his sentencing. (See ibid.; Bruner, supra, 9 Cal.4th at p. 1194; § 2900.5, subd. (b).) Terry bailed out several weeks before sentencing. But for his failure to report to his PRCS officer, he would not have been in custody on November 7. Because the car theft was not the reason he was incarcerated on the day of his sentencing, he is not entitled to credit for that partial date.
4. Presentence credits for October 6
Terry forfeited review as to presentence credit for October 6. (See section 2, ante) But even if we could reach his argument, it fails on the merits. As with the November dates, Terry did not meet his burden to show that his incarceration on October 6 was for the "same conduct" underlying his sentence in this case. (Bruner, supra, 9 Cal.4th at p. 1194; § 2900.5, subd. (b).)
The only evidence proffered was the probation report, which simply lists a PRCS-related incarceration on October 6. Following his PRCS revocation, Terry was sentenced to a 157-day term to be served concurrently with his sentence imposed in this case. After the PRCS sentencing hearing but before sentencing in this case, Terry was arrested on October 6 for a "PRCS flash incarceration." A "flash incarceration" is "a period of detention in a city or county jail due to a violation of an offender's conditions of postrelease supervision" and may last between one and 10 consecutive days. (§ 3454, subd. (c).)[8] The probation report does not indicate the basis for Terry's flash incarceration on October 6, but there is no nonspeculative basis to conclude it pertained in any way to the car theft for which he was sentenced.[9]
Recognizing that deficiencies in the record hinder his appeal, Terry argues he suffered ineffective assistance of counsel. Specifically, he argues defense counsel was constitutionally deficient in failing to present records from his PRCS case to seek additional presentence credits. To show ineffective assistance of counsel, Terry must establish both objectively deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687−688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216−218.) Because the record on appeal " ' "sheds no light on why counsel acted or failed to act in the manner challenged[,]" . . . the claim on appeal must be rejected.' " (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In a case like this one, "[a] claim of ineffective assistance . . . is more appropriately decided in a habeas corpus proceeding." (Id. at pp. 266−267.) For example, the People suggest that counsel may have tactically decided not to press the presentence credit issue, because of the Cruz waiver and Terry's failure to appear for the original sentencing hearing set for November 6.[10] Although Terry challenges that argument, additional facts, potentially prejudicial to Terry, may well have justified his trial counsel's decision or may demonstrate a lack of prejudice. (See id. at p. 267.)
Finally, Terry argues "due process and fundamental fairness" compel an award of presentence credits for October 6 and November 3 through 7. He argues that denying him credits would impair the parties' agreement to run his 157-day PRCS sentence concurrently with his sentence for car theft-related charges in this case. Because Terry failed to show that his presentence custody in October and November related to his 157-day PRCS sentence, we reject that claim.
In sum, we agree with the People that the court properly awarded Terry custody and conduct credits from his arrest on July 1, 2017 to his release on bail on September 17. Terry was not entitled to additional credits because he did not establish that his custody on October 6 or November 3 through 7 was for the same conduct as the car-theft-related offenses on which he was sentenced in this case. (§ 2900.5, subd. (b).)
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
[1] Further statutory references are to the Penal Code unless otherwise indicated.
[2] Because the record does not indicate the duration of Terry's flash incarceration beginning October 6, Terry seeks credit solely for the October 6 date on appeal.
[3] We reject Terry's suggestion that something less than "strict causation" is required. Terry cites People v. Gonzales (2006) 138 Cal.App.4th 246 for the proposition that a lower standard applies where awarding presentence credits would not risk a credit "windfall" to the defendant. (Id. at p. 253.) Gonzales considered whether to award credit when there were multiple, unrelated reasons for a period of presentence confinement. To avoid creating "dead time," after presentence credit had exhausted the sentence for one case, the excess credit was to be characterized as solely attributable to another case in which time remained to be served. (Id. at p. 254.) This case does not involve multiple, unrelated reasons for presentence confinement. As we explain, Terry did not show that his custody on October 6 or November 3 through 7 had any relation to the conduct for which he was sentenced. Gonzales is inapposite and does not affect our application of the strict causation rule.
[4] Cases applying de novo review involved novel questions of statutory interpretation. (See, e.g., In re Marquez (2003) 30 Cal.4th 14, 17–18; People v. Santa Ana (2016) 247 Cal.App.4th 1123, 1127; People v. Bravo (1990) 219 Cal.App.3d 729, 732.) On the other end of the spectrum lies People v. Lara (2012) 54 Cal.4th 896, which the People cite in support of an abuse of discretion standard. Lara involved a defendant who was denied presentence credits due to his alleged misconduct during custody, pursuant to the standards set forth in section 4019. (Id. at p. 903.) As Lara itself makes clear, a determination of presentence credits under section 2900.5 does not involve "an exercise of discretion." (Lara, at p. 903.)
[5] Section 1237.1 provides, in relevant part: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court, which may be made informally in writing. . . ."
[6] Terry cites People v. Cooper (2001) 27 Cal.4th 38 for the proposition that certain types of sentencing errors are not subject to forfeiture. (Id. at p. 41, fn. 3, citing People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.) Cooper and Aguirre both relied on the unauthorized sentence exception to the general rule that an issue must be preserved for appeal. (Cooper, at pp. 40–41; Aguirre, at pp. 1138–1139.) This narrow exception applies to sentences that "could not lawfully be imposed under any circumstance in the particular case . . . independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.) The October 6 credit issue does not fall within that exception, as the question of whether Terry was in custody for the same reason as his convictions is a factual issue that could have been raised at sentencing. As a result, Terry needed to preserve the issue as required by section 1237.1 (see fn. 5, ante).
[7] Terry relies on People v. Kennedy (2012) 209 Cal.App.4th 385, a case we readily distinguish. In Kennedy, the defendant violated his parole by committing an assault against his grandmother. (Id. at p. 388.) After all other alleged parole violations were dismissed, the assault became the sole reason for his presentence custody. (Id. at p. 394.) Accordingly, the defendant was entitled to receive additional presentence credits. (Ibid.) Terry, by contrast, committed a separate PRCS violation for failure to report, independent from the car theft.
[8] Terry concedes he is not entitled to presentence conduct credit for periods of flash incarceration. (§ 4019, subd. (i).)
[9] Citing People v. Bravo (1990) 219 Cal.App.3d 729, Terry argues that our record is sufficient to show that his presentence custody was attributable to the car theft. Bravo is not on point—the defendant in that case was charged with burglary and remained in custody from the date of his arrest to his sentencing. Our record is silent on the reason for or duration of Terry's October 6 incarceration.
[10] A "Cruz waiver" gives the trial court the power to "withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term" if the defendant willfully fails to appear for sentencing or commits another crime before the sentencing hearing, in violation of the release agreement. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5; People v. Vargas (2007) 148 Cal.App.4th 644, 649–650.)
