Filed 6/17/22 P. v. Bellamy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.

Nancy Wechsler, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant David Leroy Detrit Bellamy was convicted of making criminal threats and sentenced to eight months in prison. He contends on appeal that this case must be remanded for the trial court to correct his abstract of judgment to remove two days of presentence conduct credit for his incarceration from June 16, 2016, to June 18, 2016, and award additional presentence custody credits for his September 8, 2017, to October 10, 2017, period of incarceration. We order the trial court to amend the abstract of judgment to reflect he is awarded no conduct credit for his June 16, 2016, to June 18, 2016, incarceration. In all other respects, we affirm.

BACKGROUND AND PROCEDURAL SUMMARY

Defendant was arrested and booked on the underlying crimes on June 16, 2016, in the city of Patterson, in western Stanislaus County. He was released on bail on June 18. On June 20, 2016, the Stanislaus County District Attorney filed a complaint charging defendant with criminal threats (Pen. Code, § 422, subd. (a);[1] count 1) and carrying a loaded firearm in a public place (§ 25850, subd. (c)(6); count 2).

Defendant failed to appear on July 6, 2017, and a bench warrant was issued. He was later arrested and booked into the Alameda County jail on September 3, 2017, on active warrants from Alameda and Contra Costa Counties and the July 6, 2017, warrant from Stanislaus County in the present case. He resolved the Alameda probation violation with credit for time-served on September 7, and was transported to Stanislaus on the pending warrant on September 8, 2017. On October 10, 2017, the trial court granted the prosecution’s request that defendant be released from local custody and transported to Contra Costa County to resolve his pending robbery charge in that court. Defendant failed to appear at his next hearing in Stanislaus County Superior Court on October 24, 2017, and another bench warrant was issued. The minute order from that hearing reflected that defendant was in custody on another case at the time.

Defendant remained in custody in Contra Costa until July 11, 2019, when he was convicted of robbery in Contra Costa County and sentenced to a six-year prison term.

In November 2019, defendant served a notice and demand for trial pursuant to section 1381, and was transported to Stanislaus County for resumption of the current case.

On March 6, 2020, a jury found defendant guilty on count 1, criminal threats.

On September 17, 2020, the trial court imposed an eight-month (one-third of the midterm) sentence on count 1, consecutive to the six-year prison sentence in the Contra Costa County case. Defendant was awarded three days actual and two days of conduct credits against that sentence for the period of incarceration following his initial arrest from June 16, 2016, to June 18, 2016. Defendant filed a timely notice of appeal.

On June 3, 2021, defendant filed a section 1237.1 request to correct credits with the Stanislaus County Superior Court. The record does not reflect whether a hearing on the request was held, but there is a signed and filed July 30, 2021, order from the trial judge stating that defendant is not entitled to 33 days presentence custody credits for his incarceration from September 8, 2017, to October 10, 2017, because he was sentenced to a term consecutive with the Contra Costa case and he already received that credit in the Contra Costa matter. Also, the court ordered (as agreed to by probation and defendant’s counsel) that defendant should not have received the conduct credit of two days. Essentially, the trial court denied defendant’s request for presentence custody credits and granted his request to retract two days of his presentence conduct credits.

DISCUSSION[2]

Defendant contends he is entitled to a total of 41 days of presentence custody credits, consisting of 36 actual days credit (§ 2900.5) and five days of conduct credit (§ 2933.1). The People agree that the trial court erred in awarding defendant two days conduct credit for the period of June 16, 2016, to June 18, 2016, but argue that it did not err in denying defendant 33 actual days credit for the period of September 8, 2017, to October 10, 2017, because those credits were applied to his Contra Costa County case and defendant is not entitled to duplicate credits in this case, although defendant was in custody in Stanislaus County during that time. We instruct the trial court to amend the abstract of judgment to reflect that defendant earned no conduct credit for the period of June 16, 2016, to June 18, 2016.

1. CONDUCT CREDIT FROM JUNE 16, 2016, TO JUNE 18, 2016, INCARCERATION

Although defendant contends that the trial court erred in awarding defendant two days of conduct credits for his 2016 incarceration, the trial court later corrected that error with its order on July 30, 2021.

“[A]ny person who is convicted of a [violent] felony offense … shall accrue no more than 15 percent of worktime credit ….” (§ 2933.1, subd. (a).) Where a prisoner is serving a sentence for a violent felony, they are limited to earning conduct credit at a rate of 15 percent of actual time served; however, if the prisoner is not actually serving the sentence for the felony, the 15 percent limit does not apply. (In re Reeves (2005) 35 Cal.4th 765, 780; see People v. Ramos (1996) 50 Cal.App.4th 810, 816–817 [determining that in applying the 15 percent credit, the court should round the credit to the nearest whole number that does not exceed 15 percent].)

Defendant was in custody in Stanislaus County from June 16, 2016, to June 18, 2016. When the trial court sentenced him in this case, it awarded him three actual days credit pursuant to section 2900.5, to which two days of conduct credits were added pursuant to section 4019.

Defendant was convicted of robbery, which is a violent felony offense (see § 667.5, subd. (c)(9)), in Contra Costa County and was sentenced in that case before his conviction and sentencing in the current case. His sentence in this case is consecutive to his sentence in the Contra Costa County case. Defendant was only entitled to 15 percent custody credit pursuant to section 2933.1 against the conviction in this case. (In re Reeves, supra, 35 Cal.4th at p. 773.) When calculating any potential conduct credits, 15 percent of three days does not equal a whole number, and therefore defendant cannot be awarded any conduct credit for his period of incarceration from June 16, 2016, to June 18, 2016.[3]

Defendant questioned the trial court on this credit calculation and the trial court agreed it erred. Accordingly, we instruct the trial court to amend the abstract of judgment to reflect that defendant earned no conduct credit for the period of incarceration from June 16, 2016, to June 18, 2016.

II. ACTUAL DAYS CREDIT FROM SEPTEMBER 8, 2017, TO OCTOBER 10, 2017, INCARCERATION

Defendant next contends he is entitled to an additional 33 actual days credit for the period he was in custody from September 8, 2017, until October 10, 2017, because the record “unmistakenly shows that [defendant] was in the custody of the Stanislaus County Sheriff from September [8, 2017,] [until] October 10, 2017.” He argues that, if awarded the additional 33 actual days credit, they would give rise to an additional five days of conduct credits.[4] The People contend the trial court did not err because the credit at issue were appropriately applied to defendant’s Contra Costa County case because he was in custody for both this case and the Contra Costa County case from September 8, 2017, until October 10, 2017.

A. Law

Defendants are entitled to credit for time served from arrest until sentencing. (§ 2900.5, subd. (a); People v. Morgain (2009) 177 Cal.App.4th 454, 469.)

However, under section 2900.5, subdivision (b), “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.” Further, “[c]redit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” (§ 2900.5, subd. (b).) “The mere happenstance that separate proceedings addressing unrelated conduct also concern one or more common acts should not trigger full duplicate credit against all resulting terms.” (People v. Bruner (1995) 9 Cal.4th 1178, 1192.) “When multiple, unrelated acts of misconduct all contributed to a period of presentence restraint, and are later resolved in multiple proceedings, it should generally make no difference how the conduct is distributed among the proceedings.” (Ibid.)

A period of time previously credited against a defendant’s sentence for unrelated offenses cannot be credited to a later imposed sentence unless the defendant demonstrates that he would have been at liberty during that period but for the restraint resulting from the later sentence. (In re Joyner (1989) 48 Cal.3d 487, 489; see also People v. Goodson (1990) 226 Cal.App.3d 277, 280.)

“A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647; accord, People v. Cardenas (2015) 239 Cal.App.4th 220, 236.)

On appeal, “[w]e must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error—it will not be presumed.” (People v. Garcia (1987) 195 Cal.App.3d 191, 198.)

B. Analysis

In seeking presentence credit for his time in custody between September 8, 2017, and October 10, 2017, defendant must establish that the 33 actual days credit for that time period were not already applied to the Contra Costa County case in which he was sentenced before he was sentenced in the case at hand. (See In re Joyner, supra, 48 Cal.3d at p. 489 [a period of time previously credited against a defendant’s sentence for unrelated offenses cannot be credited to a later imposed sentence]; see also People v. Goodson, supra, 226 Cal.App.3d at p. 280.)

Here, the parties dispute whether defendant’s time in custody between September 8, 2017, and October 10, 2017, was applied to the Contra Costa County case in which he was sentenced before he was sentenced in this case. As it is defendant’s burden on appeal to affirmatively demonstrate error, here defendant must show that he is entitled to 33 actual days credit for his time in custody from September 8, 2017, to October 10, 2017, and accordingly that the actual days credit for that time period were not already applied to the Contra Costa County case. As we have explained, a defendant is entitled to credit for time served from arrest until sentencing, but “[c]redit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” (§ 2900.5, subds. (a), (b).)

Defendant argues that the trial court’s denial of his request for 33 actual days credit for the period he was incarcerated between September 8, 2017, and October 10, 2017, was based on its mistaken belief that defendant was in custody in Contra Costa County during that period, but contends that the record “clearly establishes that [defendant] was in the county of Stanislaus—not Contra Costa—from September 8, 2017 through October 10, 2017.” He argues that this means the 33 actual days credit for this time period were not applied to his Contra Costa County case.

The People contend that the credit at issue was appropriately applied to defendant’s Contra Costa County case, based on the fact that, before defendant was convicted and sentenced in this case, he was convicted of a felony in Contra Costa County, for which he was sentenced to six years in prison.

The record establishes that defendant was in custody in Stanislaus County during the period of September 8, 2017, until October 10, 2017, and the People are correct that the record establishes that defendant was sentenced to six years in prison before he was sentenced in this case.

Neither of these facts alone affirmatively answer the question of whether the credits at issue were applied to defendant’s Contra Costa County case, and neither party points to anything on the record definitively showing which credit was applied to the Contra Costa County case. However, the reporter’s transcript of March 11, 2020, the day of the verdict, shows the trial court and the parties focusing on what preconviction local time credits defendant was entitled to, and what were already applied to the Contra Costa County case.

The prosecutor gave copies of the abstract of judgment from Contra Costa to the court and defense counsel, which reflected defendant’s total and local time credits. The court said he would “provide that to probation so they’re aware of what credits were awarded in Contra Costa County, because if this is a consecutive sentence, he would not be entitled to the credits in [this case]⸻that he already used in Contra Costa. And I need to know what those are.” The prosecution was arguing for a consecutive sentence, while the defense argued for concurrent.

The April 9, 2020, probation report states,

“Should the Court order a concurrent sentence in this matter, the defendant’s custody credits will begin on November 12, 2019; however, if the defendant is given a consecutive sentence, he is not entitled to any shared custody credits for the current matter, as his credits were awarded to the Contra Costa County case for which he is still serving a prison sentence.”

Assuming the court provided the Contra Costa abstract of judgment to the probation department for its use in preparing the probation report, sufficient evidence supports the conclusion that defendant was awarded credit in the Contra Costa County case for the period of incarceration between September 8, 2017, and October 10, 2017, and could not be used again with a later consecutive sentence.

It was defendant’s burden to show that the presentence local time credit for this time period was not already applied to defendant’s Contra Costa County case, and he has failed to meet it. We deny defendant’s request to apply 33 actual days credit and the five days of conduct credit to the sentence in this case.

DISPOSITION

We instruct the trial court to amend the portion of the judgment awarding defendant two days of conduct credit for his period of incarceration from June 16, 2016, to June 18, 2016, to reflect that defendant earned no conduct credit for that period of incarceration and prepare an amended abstract of judgment to reflect that defendant earned no conduct credit. In all other respects, we affirm.

* Before Levy, Acting P. J., Detjen, J. and Franson, J.

[1] All statutory references are to the Penal Code.

[2] Because defendant raises only sentencing issues, the facts underlying the offense are not relevant and are omitted from this opinion.

[3] 3 actual days x .15 = .45 conduct credits (§ 2933.1, subd. (a).)

[4] 36 actual days x .15 = 5 conduct credits (§ 2933.1, subd. (a).)