P. v. Gutierrez

Filed 4/9/07 P. v. Gutierrez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Mono)

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This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Ibid.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

We received a letter from defendant on September 8, 2006. This letter was initially construed as a pro se supplemental brief but, upon further examination, we construed it as a request for an extension of time to file a pro se supplemental brief and granted that request. Thereafter, we granted defendant an additional extension of time.

The time for filing the supplemental brief has elapsed and we received no brief from defendant. Accordingly, we address the issues mentioned in defendants September 8, 2006, correspondence, in addition to undertaking a review of the record as required by Wende, and affirm the judgment.

FACTUAL BACKGROUND

In defendants September 8, 2006 correspondence, he complains that appellate counsels opening brief misstated the facts underlying his offenses. Defendants plea agreement adopted the facts as adduced at the preliminary hearing. Appellate counsels opening brief provided a one-paragraph version of the facts, which did not accurately reflect the testimony at the preliminary hearing. Thus, we summarize the facts from the preliminary hearing. (See People v. Kelly (2006)40 Cal.4th 106, 110, 124.)

Defendant went to his former girlfriends home on the evening of July 3, 2004. He and his former girlfriend, C.Y., had a few cocktails and discussed their recent split. C.Y. had terminated their relationship because she found out about his criminal history, including prior domestic violence and a conviction for manslaughter. Defendant was frustrated because he wanted to get back together and C.Y. refused.

Around midnight, C.Y. wanted to go to sleep. Since defendant was intoxicated, she offered to allow defendant to sleep on the couch and refused defendants requests to allow him to sleep with her. C.Y. went to bed but remained fully clothed. Defendant followed her into the bedroom and said, Everybody wants to make me out to be the bad guy . . . Ill show you bad. C.Y. responded that she did not want to see bad, she just wanted to sleep. Defendant left the room and returned a few moments later with a knife from the kitchen. He pinned C.Y. down, put the knife to her throat, threatened her life, and threatened the lives of her daughter and ex-husband. He then stabbed the pillow next to her head twice and jabbed the knife into the wall, breaking the knife. Defendant got up and left the room.

C.Y. was terrified. She picked up the pieces of the knife and hid them in the closet. She then told defendant she would sleep in her bed with him. She believed if she complied with defendants request to sleep in the same bed, he would calm down and she would be able to convince him to leave in the morning.

The following morning, she told defendant to leave. When he refused, she threatened to call the police. He continued to refuse to leave, so she picked up the phone to dial 911, but defendant wrestled the phone from her, threw it and broke it. C.Y. then tried to leave the house herself but defendant pushed and pulled her, preventing her from leaving. Finally, C.Y.s daughter came home from spending the night at a friends house and began gathering items to go to a parade. At this point, defendant apologized and let C.Y. go.

C.Y. told her daughter to hurry and that she needed to get her out of the house. C.Y. grabbed her daughters belongings and ushered her daughter out of the house. She got her daughter on her scooter and told her to go back to the friends house where she had spent the night. She then started walking down the street toward the store. Defendant grabbed her and tried to pull her back to the house but she pushed him away and kept walking. When defendant followed her and yelled after her, she began to run.

C.Y. eventually went to a friends house and called the police. Defendant turned himself in at the police station a week later after a warrant was issued for his arrest.

PROCEDURAL BACKGROUND

Defendant Raymond Vidal Gutierrez pled guilty to first degree burglary while the residence was occupied (Pen. Code,  459),^[1]assault with a deadly weapon ( 245, subd. (a)(1)), making criminal threats ( 422), false imprisonment ( 236), and battery ( 243, subd. (e)(1)). He also admitted he used a knife in the assault ( 12022, subd. (b)(1)) and that he had a prior serious felony conviction for voluntary manslaughter with use of a firearm ( 667, subds. (a) & (b)-(i), 1192.7). As part of his plea agreement, defendant stipulated to a sentence of 13 years in state prison.

The trial court sentenced defendant in accordance with his plea agreement to the upper term of four years for the assault, doubled to eight years, and a consecutive five years for the serious felony. The sentences for the remaining offenses were stayed. ( 654.) The trial court imposed a $2,600 restitution fine ( 1202.4), and a $2,600 restitution fine suspended unless parole is revoked ( 1202.45).

Defendant appeals. His request for a certificate of probable cause was denied. ( 1237.5.)

DISCUSSION

I

Defendant complains that his trial counsel did not file a motion pursuant to section 1538.5 to suppress evidence obtained as the result of an improper search. We reject this complaint.

Defendants complaint about counsels performance prior to the entry of the plea attacks the validity of the plea. As the trial judge declined to execute and file a certificate of probable cause, this issue is not cognizable on appeal. ( 1237.5, subd. (b); People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.) Moreover, we note there is nothing in the record to support the contention that trial counsel should have filed a motion to suppress evidence. The record indicates defendant surrendered himself at the police department after a warrant was issued for his arrest. The record does not suggest officers ever searched any property in which defendant had a privacy interest.

II

Although not raised by defendant in his September 8, 2006 correspondence, we briefly address the trial courts imposition of the upper term in sentencing defendant. In doing so, we find no arguable issue on appeal.

Defendant expressly waived his right to appeal pursuant to People v. Buttram (2003) 30 Cal.4th 773, 777 [unless otherwise specified, plea agreement that provides only for a maximum sentence inherently reserves right to litigate appropriate individualized sentence choice and permits defendant to challenge trial courts exercise of sentencing discretion on appeal].) Accordingly, he cannot argue on appeal that the trial court abused its discretion in imposing the upper term.

Nor can defendant argue here that he had the right to a jury trial by proof beyond a reasonable doubt on aggravating factors supporting the upper term, under Blakely v. Washington (2004) 542 U.S. 296, 302-304 [159 L.Ed.2d 403, 413-414] (Blakely). Plea bargaining is a judicially and legislatively recognized procedure (People v. Masloski (2001) 25 Cal.4th 1212, 1216; 1192.5) that provides reciprocal benefits to the People and the defendant (People v. Orin (1975) 13 Cal.3d 937, 942). When, as part of a plea agreement, the defendant specifies the sentence that is to be imposed, he necessarily admits that his conduct is sufficient to expose him to that punishment. (See generally People v. Hester (2000) 22 Cal.4th 290, 295; People v. Hoffard (1995) 10 Cal.4th 1170, 1181-1182; People v. Thomas (1986) 41 Cal.3d 837, 842-843.) The decisions in Apprendi and Blakely do not preclude imposition of a sentence to which the defendant was exposed by his admissions. Blakely provides that Apprendi could be satisfied in a guilty plea context if the defendant either stipulates to the relevant facts or consents to judicial factfinding. (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418].) But nothing in Blakely sets a particular level of formality as a constitutional requisite for a defendants stipulation or consent.

III

Finally, we reach the issue of custody credits. Initially, the trial court awarded defendant 497 days of actual custody credit, but did not award defendant any presentence conduct credit. Defendant complained in his September 8, 2006, correspondence that he had requested appellate counsel address the issue of custody credits with the trial court but had received no response on the matter.

Appellate counsel apparently sent the trial court a letter pursuant to People v. Fares (1993) 16 Cal.App.4th 954, requesting a modification in custody credits. Although appellate counsel did not file a copy of the Fares letter with this court or inform this court that an amended abstract was prepared, it has come to our attention that an amended abstract of judgment was prepared by the trial court which modified defendants custody credits. We have, therefore, augmented the record on our own motion to include a certified copy of the amended abstract.

The amended abstract reflects that defendant was awarded 246 days of actual credit, 494 days of local conduct credit, for a total of 740 days of custody credit. In addition to noting that the days listed for actual credit and local conduct credit are reversed, we find further error requiring correction in that defendant was improperly awarded conduct credits pursuant to section 4019, rather than section 2933.1.

When a prisoner is confined in county jail following arrest and prior to the imposition of sentence for a felony conviction, he is entitled to good time/work time credit calculated at the rate of two days for each four-day period in which he is confined, such that a term of six days will be deemed to have been served for every four days spent in actual custody. ( 4019, subds. (a)(4), (b), (c), (f).)

An exception to this rule applies when the conviction is for a violent felony as listed in section 667.5; under those circumstances, conduct credit is limited to 15 percent of the actual period of confinement, pursuant to section 2933.1, subdivision (c).^[2] Section 667.5, subdivision (c)(21) lists [a]ny burglary of the first degree, . . . , wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary as a violent felony.

Defendant was convicted of first degree residential burglary and it was both charged and proven that C.Y. was in the house during the commission of the burglary. Defendant is, therefore, restricted under section 2933.1 to 15 percent conduct credit for his presentence time. Thus, the trial court erred by calculating defendants conduct credits under section 4019.

A sentence which fails to properly calculate custody credits is unauthorized, and may be addressed for the first time on appeal. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-917.) In People v. Scott (1994) 9 Cal.4th 331 (Scott), the Supreme Court explained that a sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case, for example, where the court violates mandatory provisions governing the length of confinement. (Scott, supra, at p. 354.) [T]he unauthorized sentence concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. (Ibid.) In such circumstances, [a]ppellate courts are willing to intervene in the first instance because such error is clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] (Ibid.)

In this case, the trial courts failure to calculate conduct credits pursuant to the proper mandatory statutory formula is correctable without considering factual issues presented by the record at sentencing. (Cf. People v. Tillman (2000) 22 Cal.4th 300, 302 [waiver doctrine applies to claims involving the trial courts failure to properly make or articulate discretionary sentencing choices].) The trial court exercises no discretion when computing the number of days of conduct credit to which the defendant is entitled, but instead, applies an established formula. (People v. Jack, supra, 213 Cal.App.3d at p. 917; see also People v. Sage (1980) 26 Cal.3d 498, 509.)

Defendant is entitled to presentence conduct credit of 15 percent of the actual period of confinement under section 2933.1. Having served 494^[3]days in actual confinement, defendant is entitled to 74 days of conduct credit, for a total of 568 days of presentence custody credit. The amended abstract must also indicate that the conduct credits were awarded pursuant to section 2933.1. In the interest of judicial economy, we correct this error without first requesting supplemental briefing. Any party wishing to address these issues may petition for rehearing. (Gov. Code,  68081.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to provide 74 days of conduct credit pursuant to section 2933.1, in addition to 494 days of actual time credit, for a total of 568 days of presentence custody credit. The amended abstract shall also indicate that the conduct credits were awarded pursuant to section 2933.1. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2] Section 2933.1 provides, in relevant part, as follows: (a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [] . . . [] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).

^[3] We recognize that the original abstract of judgment listed 497 days of actual credit. However, it appears the amended abstract accurately reflects 494 days as the number of actual days defendant spent in custody, since the record shows defendant turned himself in on July 27, 2004, and was sentenced on December 2, 2005.