P. v. Denman
Filed 7/12/13 P. v. Denman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
EUGENE DENMAN,
Defendant
and Appellant.
E053798
(Super.Ct.No.
RIF10000870)
APPEAL from the Superior
Court of
County. Jean P.
Leonard, Judge. Affirmed in part and
reversed in part with directions.
Rebecca P. Jones, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry Carlton, and Sharon L. Rhodes, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant
Eugene Denman targeted nine distressed properties in Riverside
County by filing
himself despite having no right of ownership or title in the properties. He also filed homestead declarations for each
of the properties making false statements that he was living in them.
Defendant was found guilty of 20
counts of recording false documents and nine counts of perjury. For each property, the jury found true an
enhancement that he damaged the property by clouding title and an additional
aggravated white collar crime enhancement that the loss for two or more of the
nine properties exceeded $500,000.
Defendant now contends on appeal as
follows:
1. There
was insufficient evidence of his
convictions pursuant to Penal Code section 115 for filing false documents for
the quitclaim deeds he filed.
name="_ftnref1" title="">[1]
2. There
was insufficient evidence as a matter of law to prove the loss enhancements
under section 12022.6, subdivision (a)(1) and (2).
3. There
was insufficient evidence to prove the aggravated white collar crime
enhancement that the losses to the victims exceeded $500,000 under section
186.11, subdivision (a)(1).
4. He
is entitled to additional conduct credits under former section 2933,
subdivision (e)(1).
We find that defendant is entitled
to additional conduct credits. In
addition, the trial court erred by failing to impose a mandatory fine pursuant
to section 186.11, subdivision (c). We
otherwise affirm the judgment.
name="_ftnref2" title="">[2]
I
PROCEDURAL BACKGROUND
This case involves nine different
properties located in Riverside County:
8044 Palm View Lane in Riverside (Palm View); 23160 Donahue Court in
Riverside (Donahue);
name="_ftnref3" title="">[3] 12968 Oak Dale Street in Corona (Oak Dale
Street); 7267 Cobble Creek Drive in Corona (Cobble Creek); 5952 Larry Dean Street
in Corona (Larry Dean); 6440 Harrow Street in Mira Loma (6440 Harrow); 13721
Amber View in Corona (Amber View); 13704 Star Ruby Avenue in Corona (Star
Ruby); and 6443 Harrow Street in Mira Loma (6443 Harrow) (collectively, the
properties).
Defendant, who represented himself,
was found guilty by a jury of 20 counts of recording false documents (quitclaim
deeds and homestead declarations) for the properties within the meaning of
section 115 (counts 1, 2, 4, 5, 7, 8, 10, 11, 13, 14, 16, 17, 19, 20, 22, 23,
24, 26, 27, 28) and nine counts of perjury within the meaning of section 118
(counts 3, 6, 9, 12, 15, 18, 21, 25, 29).
the enhancement that the value of the property taken exceeded $65,000 within
the meaning of section 12022.6, subdivision (a)(1). For all remaining counts, the jury found true
the enhancement pursuant to section 12022.6, subdivision (a)(2) that the
property value was over $200,000. The
jury also found the allegation true that defendant engaged in a pattern of
related fraudulent conduct that involved the taking of more than $500,000
within the meaning of section 186.11, subdivision (a)(2). In a bifurcated proceeding, defendant
admitted serving a prior prison term (§ 667.5, subd. (b)).
Defendant was sentenced to 23 years
8 months in state prison. He was given
credit for 502 actual days in custody and 250 days of conduct credit.
II
FACTUAL BACKGROUND
A.
Riverside County District Attorney’s
Office Investigator Dan Stack was assigned to investigate real estate fraud in Riverside
County. He was contacted by the Riverside County
Recorder’s office regarding suspicious quitclaim deeds and homestead
declarations being filed by defendant.
According to Investigator Stack, defendant searched the records at the
Riverside County Recorder’s Office and looked for properties that were in
default and for which foreclosure proceedings were being started.
Defendant filed a quitclaim deed and
homestead declaration for Palm View on January
19, 2010. Brett Hupe
purchased Palm View in late 2009. He
fixed it up and found a buyer for the property.
He was then informed that someone had moved into the property. The locks had been changed, and the house was
full of furniture.
On January 25, 2010, Investigator Stack went to Palm
View. The renters in the property had a
rent) signed with defendant for Palm View.
Defendant came to Palm View and told Investigator Stack that he was
claiming Palm View under adverse possession.
Defendant was suing the owners of Palm View for quiet title of the
property. He claimed to be the owner
based on his recorded quitclaim deed and homestead declaration. The renters sued Hupe, and he settled with
them for $3,500. Hupe eventually sold
the house for $400,000.
Defendant filed a quitclaim deed and
a homestead declaration for Donahue on January 19, 2010. Barbara Haynes had owned and lived in Donahue
for 17 years. She had no idea that
defendant had filed a quitclaim deed or homestead declaration against
Donahue. According to Haynes, the
address on the quitclaim deed and homestead declaration were erroneous because
it listed the property in Riverside, when it was in Moreno Valley. However, the parcel number was correct.
Defendant filed quitclaim deeds and
homestead declarations for Oak Dale and Cobble Creek on November 4, 2009.
Defendant also filed a quitclaim
deed and homestead declaration for Larry Dean on November 4, 2009. In 2009, the owner of Larry Dean, Andres
Serrano, could no longer afford the home, so he set up a short sale of the
property. In November 2009, he found a
buyer. Before it was sold, some people
started moving into his home. Defendant
got a restraining order to keep Serrano out of the property. Defendant told Serrano he had right to the
property under section “1800†and emancipation.
Serrano could not sell Larry Dean due to the cloud on the property. Serrano contacted Investigator Stack.
Defendant eventually signed a grant
deed giving the property back to Serrano.
Serrano was eventually able to get the renters out and sell the
property.
Defendant filed a quitclaim deed and
homestead declaration for 6440 Harrow on November 18, 2009. An investor bought 6440 Harrow in August 2009
for $299,000. The investor had to evict
the prior owners. The investor listed it
for sale in January 2010. At that time,
the investor was informed that the owner of the property was defendant. It took approximately one month in order for
the investor to be able to list it for sale and only after a title company
agreed to indemnify the investor from any challenge to the title. The property sold in May 2010.
Defendant filed a quitclaim deed and
homestead declaration for Amber View on November 3, 2009. In 2009, Amber View’s assessed value was
$482,000. Amber View was listed for sale
in May 2009. A short sale was
approved. In November 2009, unauthorized
persons moved into the house. They told
a Riverside County sheriff’s deputy, who was called to the property, that they
had rented the property for $2,500 per month.
The renters gave the deputy a rental agreement showing defendant
executed a lease agreement with the renters.
The renters were going to have to be evicted, and the owner of the
property could not afford it. The
property could not be sold, and it was foreclosed upon. Defendant had sued the owner of Amber View
for quiet title.
Defendant filed a quitclaim deed and
a homestead declaration for Star Ruby on November 18, 2009, and another
quitclaim deed on November 25, 2009.
Defendant filed a quitclaim deed and two homestead declarations for 6443
Harrow on November 25, 2009.
An employee of the Riverside County
Assessor’s Office indicated that properties in Riverside County are assessed
for value for determining property taxes.
The assessed values of the properties were displayed to the jury.
For each of the properties,
defendant recorded a quitclaim deed attesting that “I, Eugene V. Denman, quit
claim to Eugene V. Denman all my rights, title and interest in the real
property . . . described as
follows . . . .†He
also filed a homestead declaration for each claiming “I am the owner of the
land and premises . . . more particularly described
as . . . .†All the
homestead declarations were filed under penalty of perjury.
Investigator Stack called these
quitclaim deeds “wild deeds.†The wild
deeds were not in a chain of title; i.e., they were not granted from one
person, who legally had title to the property, to another. Once the quitclaim deed was recorded, it
would appear on the title record for the property.
Sharon Grannis was employed by a
title company. She also explained that a
wild deed was a deed that is filed where the party had no prior recorded
interest in the property. When a wild
deed was found in the title for a property, it raised a red flag that there may
be another interest in the property. A
quiet title action would have to be filed by the title company to get the deed
off the title. Quitclaim deeds, like the
ones filed in this case, would cloud the title.
Defendant listed his address on some
of the filings as being in Wilmington.
Defendant’s parole agent had his address listed as a shelter on Compton
Boulevard. He started parole on February
23, 2009. Defendant also had listed the
Wilmington address as an address with the parole department. The parties stipulated that the homestead
declarations and quitclaim deeds were all signed and executed by
defendant.
B.
Defendant testified that he believed
the homes were abandoned and that he was just providing shelter to people in
need. He thought he was complying with
state and federal laws. Defendant
mistakenly filed quitclaim deeds on 6440 Harrow and Donahue. Defendant stayed one night at 6443 Harrow; he
believed the quitclaim deed allowed him to occupy the premises. He also claimed that he had lived at the
Larry Dean location. He had tenants at
Star Ruby and Palm View. He filed quiet
title actions on some of the properties.
Defendant claimed that he either stayed in the properties or had tenants
move in to exercise control of the property.
Defendant admitted that he had no
claim of title or interest in the properties.
He admitted that he had previously been convicted of domestic
violence.
III
QUITCLAIM DEED AS A FALSE DOCUMENT PURSUANT TO SECTION
115
Defendant contends that his
convictions for filing false documents for the quitclaim deeds must be
reversed. He claims that since a
quitclaim deed only transfers title that a person may or may not have, he could
not be found to have filed false documents, as he was not representing that he
owned the property, and he had no interest to transfer.
“Our task is clear. ‘On appeal we review the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence ‑‑ that is, evidence that is
reasonable, credible, and of solid value ‑‑ from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of
which suggests guilt and the other innocence [citations], it is the jury, not
the appellate court[,] which must be convinced of the defendant’s guilt beyond
a reasonable doubt. ‘“If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.â€â€™ [Citations.]â€
[Citation.]’ [Citations.] The conviction shall stand ‘unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].â€â€™
[Citation.]†(
507-508.)
Section 115, subdivision (a)
provides as follows: “Every person who
knowingly procures or offers any false or forged instrument to be filed,
registered, or recorded in any public office within this state, which
instrument, if genuine, might be filed, registered or recorded under any law of
this state or the United States, is guilty of a felony.â€
“[S]ection 115 was designed to
prevent the recordation of spurious documents knowingly offered for
record. [Citation.]†(Generes
v. Justice Court (1980) 106 Cal.App.3d 678, 681-682 (Generes).) “‘The core purpose
of . . . section 115 is to protect the integrity and
reliability of public records.’
[Citations.] This purpose is
served by an interpretation that prohibits any knowing falsification of public
records.†(People v. Feinberg (1997) 51 Cal.App.4th 1566, 1579.)
In Generes, the defendant recorded a grant deed that purported to
transfer from herself to herself an easement over land she did not own. After a municipal court denied the
defendant’s demur to a complaint charging her with violating section 115, she
petitioned the superior court for a writ
of prohibition. The superior court
issued a peremptory writ stating as follows:
“ . . . ‘It appears from the face of the complaint
that Defendant filed a document which was exactly what it purported to be: to wit, a deed from herself to herself
granting herself an easement over land she did not own. The court does not rule that this conduct is
legal. It merely states now that it is
not a violation of . . . [s]ection 115.’†(Generes,
supra, 106 Cal.App.3d at p. 681.)
The People appealed arguing that the
trial court applied an overly narrow construction of the word “false.†(Generes,
supra, 106 Cal.App.3d at pp. 681-682.)
In reversing the superior court’s order, the appellate court
stated: “Here the lack of an ownership
interest in the land goes to the deception itself. If Generes did not own the interest she
purported to convey, the instrument she filed was clearly false. Having no right to grant or convey an
easement, her recording of a deed transferring an easement would establish a
cloud on the title of those persons who lawfully owned interests in the
land. A title searcher encountering the
spurious document who acted upon it as genuine would of course be materially
deceived.†(Id. at p. 682.)
In responding to the defendant’s
claim that a violation of section 115 required a forged instrument the court
stated, in pertinent part as follows: “[S]ection 115 differentiates between the
two categories, clearly proscribing either a false or a forged instrument.
Obviously, as in the present case, an instrument may have the effect of
defrauding one who acts on it as genuine even though it does not bear a forged
signature or otherwise meet the technical requirements of a forged
instrument.†(Generes, supra, 106 Cal.App.3d at p. 682.)
Here, defendant filed quitclaim
deeds to himself on property to which he admitted he had no title or
interest. While defendant is technically
correct that he attested in the quitclaim deed that he was only transferring
whatever title or interest he possessed, it was clear based on the evidence he
had absolutely no interest in the property.
The documents themselves were false in that they transferred an interest
that he did not have to himself and then he recorded the document, clouding the
title of the true property owners.
Adopting defendant’s reasoning would be in direct contradiction with the
purpose behind section 115 to preserve and protect the integrity of public
records. Based on the purpose of the
statute and the fact that section 115 has been broadly construed, the quitclaim
deeds could reasonably be considered false documents by the jury.
As noted by the trial court, the
filing of each document clouds the title.
Grannis testified that once a wild deed is found by the title company,
it must act upon it and clear the title.
A title company, seeing the “spurious†document, would have to act on
it. Moreover, in conjunction with the
quitclaim deeds, defendant filed false declarations of homestead, when it was
clear that he had no interest in the nine properties. It gave the impression that the quitclaim
deeds were valid and that defendant actually possessed the properties.
Defendant asks this court to
narrowly construe section 115 and find that he did not technically make any
false statements on the quitclaim deeds because such deeds only transfer
whatever interest he possessed. “It is
well recognized that a quitclaim deed is a distinct form of conveyance and
operates like any other deed inasmuch as it passes whatever title or interest
the grantor has in the property.
[Citations.] It is equally
settled that the form of the instrument creates a presumption that the title to
the property is held as shown in the instrument.†(In re
Marriage of Broderick (1989) 209 Cal.App.3d 489, 496.) Defendant argues that although there is a
“presumption†that the quitclaim deed transfers some interest or title, it does
not actually transfer any interest.
While we may agree with defendant that this true, the evidence here
overwhelmingly showed that defendant only filed the quitclaim deeds in order to
cloud title and to unlawfully gain possession of the property. This is akin to the actions in
The
purpose of section 115 ‑‑ to preserve the integrity of
public documents ‑‑ is served by finding the quitclaim
deeds in this case were false documents.
As such, we affirm the judgment of the jury in finding him guilty of
section 115 for each of the quitclaim deeds that he filed.
IV
INSUFFICIENT EVIDENCE OF VIOLATIONS OF SUBDIVISION
(A)(1) AND (2) OF SECTION 12022.6
Defendant contends that the evidence
was insufficient to find him guilty of violating section 12022.6, subdivision
(a)(1) (loss of more than $65,000) and (2) (loss of more than $200,000),
because there was no evidence that the victims’ losses exceeded these statutory
amounts. We have set forth the standard
of review for sufficiency of the evidence claims, ante.
Section 12022.6, subdivision (a)
states: “When any person
in the commission or attempted commission of a felony, with the intent to cause
that taking, damage, or destruction, the court shall impose an additional term
as follows: [¶] (1) If the loss exceeds
sixty-five thousand dollars ($65,000), the court, in addition and consecutive
to the punishment prescribed for the felony or attempted felony of which the
defendant has been convicted, shall impose an additional term of one
year.†(Italics added.) Under subdivision (a)(2), a sentence of two
years shall be imposed if the amount exceeds $200,000. Subdivision (b) provides that “[i]n any
accusatory pleading involving multiple charges of taking, damage, or
destruction, the additional terms provided in this section may be imposed if
the aggregate loses to the victims from all felonies exceeded the amounts
specified in this section and arise from a common scheme or plan.â€
In discussing the jury instructions
and defending the section 1118.1 motion, the People made clear it was only
proceeding on the theory that there was damage to the title and not a
taking. The People did not discuss a
theory under section 12022.6, subdivision (b) of a common plan or scheme. In closing, the People argued that defendant
damaged the title for each of the properties.
His intent was shown by filing quiet title actions that he hoped the
owners could not defend.
name="_ftnref6" title="">[6]
In People v. Beaver (2010) 186 Cal.App.4th 107, the court found that
“[section 12022.6] applies to any felony that causes a taking, damage or
destruction of property. Furthermore, as
to defendant’s argument that the calculation of the value of property involved
in the felony is limited to what the defendant received, rather than what the
victim lost, this is incorrect. The
inclusion of property that has either been ‘damage[d]†or “destroy[ed]’ in the
calculation demonstrates a clear intent that the emphasis is on what the victim
lost, not what the defendant gained.†(
“’[T]he Legislature did not intend
that the application of section 12022.6 should depend upon the fortuitous
circumstances of whether the police were able to recover stolen property or the
victim was able to establish a civil claim . . . .’ [Citation.]â€
(People v. Frederick (2006)
142 Cal.App.4th 400, 422.) In
529, the court rejected the defendants’ argument that section 12022.6 applied
“only if the victim’s ultimate out-of-pocket loss exceeds†the statutory
amount. (Ramirez, at p. 539.) “To interpret the statute in the manner
suggested by appellants would be to attribute to the Legislature an intent to
depart radically from well-established law that the recovery of stolen property
by the victim is no defense to crime and is only relevant in mitigation of punishment
when the defendant voluntarily returns it prior to being charged.†(Ibid.)
Here, Grannis testified that if a
cloud on title was found, the issue would have to be investigated. The title company would not insure the
property if a wild deed existed. For
example, for a time, the investor in 6440 Harrow was unable to get the title
company to insure title, and therefore no sale could occur, because of the wild
deed on the property. Serrano could not
sell Larry Dean because of the cloud on title. The owner of Amber View could not sell the
property because of the cloud on title, and it was foreclosed upon. Further, a title company would have to file a
quiet title action to clear title.
Hence, based on the wild deeds, the true owners of the property could
not liquidate or sell their properties.
As such, the loss at the time based on the cloud on title was a total
loss of the value of the property.
Defendant contends he could not take
the properties because he had no title or interest in the properties, since he
possessed no interest under the quitclaim deeds. However, the People proceeded on a theory
that defendant damaged the properties
by clouding title, not that he took the properties. Section 12022.6 does not define damage.
harm resulting from injury to person, property, or reputation.†(Webster’s 9th New Collegiate Dict. (1991) p.
323.) Here, by not being able to sell
their properties because of the cloud on title, each of the victims suffered
loss of the assessed value of their property.
Defendant claims that “it is the
loss incurred, not the total value of the property itself, that must be
measured to determine if the enhancement applied.†However, as noted, ante, with the cloud on title, the owners could not sell or
liquidate their properties. As such, at
the time that he filed the quitclaim deeds and homestead declarations, the true
property owners could not sell their properties. They suffered a total loss that equaled the
assessed value of the property.
Defendant makes no claim the assessor’s testimony regarding the value of
the properties was erroneous. Even
though most of the property owners were later able to clear title and sell the
properties, this does not signify there was insufficient evidence of the
enhancement.
Although not raised by the
defendant, we note that the jury was not properly instructed on the enhancement
under section 12022.6, subdivision (a)(1) for counts 4, 5, and 6. Under subdivision (a)(1), the loss of the
property need only be $65,000. On counts
4, 5, and 6, defendant was only charged with taking or damaging $65,000 worth of property. Presumably, exhibit 26 only provided evidence
that the value of the property was greater than $65,000, but not greater than
$200,000. However, the jury was
instructed that it need find that the property taken, damaged, or destroyed was
greater than 200,000 for all counts.
When the trial court gives an
incorrect or incomplete instruction that allegedly affects the substantial
rights of a defendant, it is reviewable even if no objection was raised in the
trial court. (§ 1259; see
1011-1012 [no forfeiture when “trial court gives an instruction that is an
incorrect statement of the law]â€.)
However, jury instructions must be considered in light of the entire
record to determine whether it is reasonably likely the jury was misled. (See People
v. Cross (2008) 45 Cal.4th 58, 67-68.)
Here, the jury verdict form did
state that the amount of loss need only be $65,000. We conclude the jury would have understood
its duty was to determine for counts 4, 5, and 6 that the value of the property
was greater than $65,000, not $200,000.
(See People v. Hughes (2002)
27 Cal.4th 287, 377 [instructions read together with the verdict form evidenced
a proper finding by the jury].)
Based on the foregoing, ample
evidence supported that defendant damaged the properties in an amount exceeding
$200,000 for all counts except counts 4, 5, and 6, which were supported by
evidence that the amount exceeded $65,000.
V
TAKING OF GREATER THAN $500,000 PURSUANT TO
SECTION 186.11, SUBDVISION (A)(2)
Similar to defendant’s previous
contention, he claims he could not be found guilty of violating section 186.11,
subdivision (a)(2), the aggravated white collar crime enhancement, because he
“took nothing,†and therefore the losses to the victims did not exceed
$500,000.
Section 186.11, subdivision (a)(1),
as it read at the time that defendant recorded the quitclaim deeds and
homestead declarations, provides in pertinent part as follows: “Any person who commits two or more related
felonies, a material element of which is fraud or embezzlement, which involves
a pattern of related felony conduct, and the pattern of related felony conduct
involves the taking of, or results in the
loss by another person or entity of, more than one hundred thousand dollars (
conviction of two or more felonies in a single criminal proceeding, in addition
and consecutive to the punishment prescribed for the felony offenses of which
he or she has been convicted, by an additional term of imprisonment in the
state prison as specified in paragraph (2) or (3). This enhancement shall be known as the
aggravated white collar crime enhancement.
The aggravated white collar crime enhancement shall only be imposed once
in a single criminal proceeding.â€
(Stats. 2007, ch. 408, § 1, italics added.) Subdivision (a)(2) provides for a two, three,
or five year prison sentence if the amount of loss or taking exceeds
$500,000.
“The purpose of the aggravated white
collar crime enhancement [is] to provide a mechanism for greater punishment for
criminals who engage in a pattern of fraudulent activity that results in a
large amount of accumulated takings.†(
Cal.App.4th 735, 747.)
As we found in the preceding
section, the evidence supported that each of the owners of the properties
suffered a loss of the value of the property of greater than $200,000 (except
counts 4, 5, and 6). As such, the
evidence here is substantial to support the enhancement that the total
aggregated loss for two or more counts exceeded $500,000.
VI
CONDUCT CREDITS
Defendant argues in his opening
brief that he is entitled to additional conduct credits. Defendant was in custody from February 22,
2010, until July 8, 2011. Defendant
spent 502 actual days in custody, and the trial court granted him 250 days of
local custody credit pursuant to section 4019, for a total of 752 days. Defendant claims he was entitled to
calculation of credits under former section 2933, subdivision (e)(1), as it was
amended effective September 28, 2010, for the entire period, which would have
given him “day-for-day credits†for a total of 502 days of conduct credit. (Former § 2933, subd. (e)(1), added by Stats.
2010, ch. 426, § 1, eff. Sept. 28, 2010, and repealed by Stats. 2011, 1st
Ex.Sess., 2011–2012, ch. 12, § 16, eff. Sept. 21, 2011.)
The People agree that defendant is
entitled to additional conduct credits.
However, they contend that defendant is entitled to credits for the
period from February 22, 2010, through September 27, 2010, under former section
4019, effective January 25, 2010, which allows for two days of conduct credit
for every two days spent in local custody.
(People v. Brown (2012) 54
Cal.4th 314, 318, 320 (Brown). They agree with defendant that for the period
from September 28, 2010, through July 8, 2011, he is entitled to conduct
credits under former section 2933, subdivision (e)(1).
A defendant is entitled to actual
custody credit for “all days of custody†in county jail. (§ 2900.5, subd. (a); see also
523, 526.) Calculation of custody credit
begins on the day of arrest and continues through the day of sentencing. (People
v. Bravo (1990) 219 Cal.App.3d 729, 735.)
The California Supreme Court decided
Brown, supra, 54 Cal.4th 314, after
defendant filed his opening brief.
name="_ftnref8" title="">[8] In Brown,
the high court reviewed the application of the amendment of former section 4019
and concluded the amendment applied prospectively only and that prisoners could
earn credits at a different rates if their prison terms overlapped the
effective dates of section 4019. (
Subdivision (e)(1) of former section
2933, in effect when defendant was sentenced on July 8, 2011, read: “Notwithstanding Section 4019 and subject to
the limitations of this subdivision, a prisoner sentenced to the state prison
under Section 1170 for whom the sentence is executed shall have one day
deducted from his or her period of confinement for every day he or she served
in a county jail, city jail, industrial farm, or road camp from the date of
arrest until state prison credits pursuant to this article are applicable to the
prisoner.†Like the revised version of
section 4019 analyzed in Brown, the
former subdivision of section 2933 contained no express statement of
retroactivity.
Subdivision (e)(3) of former section
2933 provided that conduct credits were to be calculated under section 4019
only if the prisoner was required to register as a sex offender; was committed
for a serious felony, as defined in section 1192.7; or had a prior conviction
for a serious felony as defined in section 1192.7 or a violent felony as defined
in section 667.5. None of the specified
exceptions applies to defendant. (Former
§ 2933, subd. (e)(3).)
Hence, for that one-year
period ‑‑ September 28, 2010 until September 21,
2011 ‑‑ section 2933, subdivisions (e)(1) and (e)(3) was
operative. (Brown, supra, 54 Cal.4th at p. 321, fn. 8.) We agree with the People that defendant is
entitled to credits for the period from February 22, 2010, through September
27, 2010, under former section 4019, which allows for two days of conduct
credit for every two days spent in local custody. We also agree that from September 28, 2010,
through July 8, 2011, defendant is entitled to one day for each day conduct
credits under former section 2933, subdivision (e)(1). Since, as we discuss, post, we are remanding this case for the trial court to impose a
fine under section 186.11, subdivision (c), we will leave it to the trial court
to recalculate the conduct credits in accordance with this opinion.
We note that there may be some
confusion as to whether the trial court can award former section 2933,
subdivision (e)(1) conduct credits. In a
footnote, the Brown court discussed a new argument made by defendant in his
answering brief that former section 2933 entitled him to additional conduct
credits even if section 4019 did not apply to him, and that the California
Department of Corrections and Rehabilitation (CDCR) committed error by failing
to award credits under former section 2933, subdivision (e)(1). The high court found the claim untimely but
added, “Such a claim must logically be brought in a petition for habeas corpus
against the official empowered to award such credits, namely the Director of
the CDCR.†(Brown, supra, 54 Cal.4th at p. 322, fn. 11.)
In People v. Tinker (2013) 212 Cal.App.4th 1502, the Attorney General
argued that the trial court could not award the former section 2933,
subdivision (e)(1) conduct credits relying on footnote 11 of
(Tinker, at pp. 1507-1508.) The
court stated, “The Attorney General reads far too much into this footnote. In Brown,
the prisoner had been sentenced by the trial court in 2007, the same year he
had served his presentence custody time.
The ‘judgment on review’ was the Court of Appeal’s 2010 judgment
regarding his claim that he was entitled to retroactive conduct credit under
the January 2010 version of section 4019.
He did not contend that the Court of Appeal (or the trial court) had
somehow erred by failing to apply former section 2933, subdivision (e), which
did not become operative until after the Court of Appeal’s decision. Instead, he contended that
2933, subdivision (e). Hence, the
California Supreme Court reasonably concluded that such a claim was not
properly before it on review of the Court of Appeal’s judgment.†(Id.
at p. 1508.)
The Tinker court concluded that the issue of the correct award of
conduct credit was on direct review and it also concluded that trial court had
the authority to calculate the credits.
(People v. Tinker,
can calculate the conduct credits upon remand under both former sections 2933,
subdivision (e)(1) and 4019.
VII
FINE PURSANT TO SECTION 186.11, SUBDIVISION (C)
The People argue, despite not filing
an appeal and failing to object below, that the trial court erred by failing to
impose a fine pursuant to section 186.11, subdivision (c). Defendant agrees that the fine is mandatory
but disputes the amount of the fine that should be imposed. He requests remand for the trial court to
impose the fine. We agree remand is
appropriate for imposition of the fine.
Subdivision (c) of section 186.11
provides as follows: “Any person
convicted of two or more felonies, as specified in subdivision (a), shall also
be liable for a fine not to exceed five hundred thousand dollars ($500,000) or
double the value of the taking, whichever is greater, if the existence of facts
that would make the person subject to the aggravated white collar crime enhancement
have been admitted or found to be true by the trier of fact. However, if the pattern of related felony
conduct involves the taking of more than one hundred thousand dollars
($100,000), but not more than five hundred thousand dollars ($500,000), the
fine shall not exceed one hundred thousand dollars ($100,000) or double the
value of the taking, whichever is greater.â€
“Section 186.11, subdivision (c)
if the defendant is ‘convicted of two or more felonies, as specified in
subdivision (a),’ and the jury finds true the section 186.11, subdivision (a)
allegation.†(People v. Lai (2006) 138 Cal.App.4th 1227, 1251, italics added, fn.
omitted.) A trial court’s failure to
impose a fine in the mandatory amount constitutes an unauthorized sentence.
Here, the jury found the
enhancements under 12022.6, subdivision (a)(1) and (a)(2) true. As such, the imposition of a fine was
mandatory, and the failure of the trial court to impose the fine constitutes an
unauthorized sentence. We therefore will
remand the matter to allow the trial court to determine and impose the
appropriate fine pursuant to section 186.11, subdivision (c).
VIII
DISPOSITION
The matter is remanded for the trial
court to impose the mandatory restitution fine under section 186.11,
subdivision (c). In addition, we direct
the trial court to recalculate the number of days of presentence conduct credit
in accordance with this opinion. The
trial court shall then order that an amended abstract of judgment be prepared
and forwarded to the Department of
Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting
P. J.
McKINSTER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise
indicated.
July 26, 2012, defendant filed a request to augment the record on appeal or, in
the alternative, asked us to take judicial notice of the pretrial writ
proceedings in case Nos. E050410, E053798, E050451, E052829, E053224, and
E053520. He made this request in order
to preserve all of his rights, including his right to seek federal review of
his convictions. The People objected to
the request. We deemed his request a
request for judicial notice. We conclude
the records are not relevant to the issues raised on appeal and decline to take
judicial notice of the pretrial proceedings.
(People v. Rowland (1992) 4
Cal.4th 238, 268, fn. 6 [records must be relevant to a material issue].)
