P. v. Ball

Filed 2/27/07 P. v. Ball CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Stephen G. Herndon and David A. Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

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On December 16, 2004, appellant, Jason Dwayne Ball, entered into a plea bargain in case Nos. F04901731-0 and F04901836-7. In case No. F04901731-0, Ball pled no contest to assault with a firearm (Pen. Code, 245, subd. (a)(2))^[1]and admitted a gang enhancement ( 186.22, subd. (a)(2)), a personal gun use enhancement ( 12022.5, subd. (a)(1)), and allegations that he had a prior conviction within the meaning of the three strikes law ( 667, subd. (b)-(i)). In case No. F04901836-7, Ball pled no contest to arson of an inhabited building ( 451, subd. (b)). The agreement also provided that Ball would receive a prison term of 17 to 19 years.

On February 18, 2005, the court sentenced appellant to an aggregate 17-year term as follows: the mitigated term of two years on the assault conviction, doubled to four years because of Balls prior strike conviction, a ten-year gang enhancement, a three-year arming enhancement, and a concurrent five-year term on his arson conviction.

Ball timely appealed, contending, in pertinent part, that the court violated section 654s ban on multiple punishment when it imposed a prison term for each enhancement because both enhancements were based on his singular use of a firearm. Following respondents concession on this issue, this court vacated the sentence, remanded for resentencing, and otherwise affirmed the judgment.

On June 9, 2006, the court dismissed the prior conviction allegations with respect to Balls assault conviction and reimposed a 17-year term as follows: the mitigated term of 3 years on Balls arson conviction doubled to 6 years because of his prior strike conviction, a consecutive 1-year term on Balls assault conviction (one-third the middle term of 3 years), and a 10-year gang enhancement and a stayed 4-year arming enhancement that both attached to that conviction.

On June 15, 2006, Ball filed a timely appeal. However, he did not obtain a certificate of probable cause.

On appeal, Ball contends: 1) his sentence must be reduced or he must be permitted to withdraw his plea because his sentence contains three unauthorized components; and 2) the court erred by not giving him actual custody credit for his custody time from the date of his original sentencing to the date of his resentencing. We will find merit to his second contention and that his first contention is not cognizable on appeal. In all other respects, we will affirm.

DISCUSSION

The Alleged Unauthorized Sentence

Ball contends that his sentence is unauthorized because: 1) the imposition of a 10-year term on the arming enhancement violates section 1170.1, which limits enhancements that are tied to a subordinate term to one-third the enhancement term imposed;^[2]2) the trial courts selection of the arson as the principal term violated section 1170.1s requirement that the longest term, including enhancements, be designated the principal term; and 3) the court was not authorized to double the term imposed on Balls arson conviction because he did not admit a prior strike conviction with respect to that offense. Thus, according to Ball, if his sentence cannot be reconfigured in an authorized manner to an aggregate term of 17 years, he should be allowed to withdraw his plea. We will find that these contentions are not cognizable on appeal because Ball did not obtain a certificate of probable cause.

In People v. Shelton (2006) 37 Cal.4th 759, the court held that, inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximumsentence and preserves only the defendants right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial courts authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause. (Id. at p. 763.) In so holding, the court explained:

[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause. [Citation.] (People v. Shelton (2006) 37 Cal.4th 759, 766.) The specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Id. at p. 768.) [A] provision recognizing the defendants right to argue for a lesser term is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law. (Ibid.) Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial courts authority to impose a specified maximum sentence-because of . . . section 654s multiple punishment prohibition or for some other reason-and preserves the defendants right to raise that issue at sentencing and on appeal. (Id. at p. 769.)

Here, Balls contentions are not directed to the court exercise of sentencing discretion. Rather, they challenge the courts authority to impose a 17-year term, a term he implicitly agreed the court was authorized to impose under his plea agreement. Thus, Ball was required to obtain a certificate of probable to raise the above-noted issues because his challenge to the manner in which the court arrived at his 17-year term challenges the validity of his plea.

In a supplemental letter brief, Ball contends that he was not required to obtain a certificate of probable cause to raise the above issues on appeal because: 1) he is not appealing from a judgment after entry of plea, he is appealing from an order after judgment affecting his substantial rights; and 2) Shelton is distinguishable because that case involved an alleged violation of section 654.^[3] We will reject these contentions.

Section 1237.5 provides, No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

Here, at the time of Balls resentencing, the original judgment had not become final. (Cf. People v. Mariano (1983) 144 Cal.App.3d 814, 820 [defendants claim that stay became permanent when remittitur issued was rejected because at the time of resentencing, the original judgment had neither been voided by a reversal nor become final by an affirmance].) Thus, Balls appeal from the sentence imposed upon resentencing was not an appeal from an order after judgment. Rather, it was an appeal from the original judgment, which due to the appellate process had not become final. Further, because the judgment of conviction was based on a plea of nolo contendere, Ball was required to comply with section 1237.5 and obtain a certificate of probable cause in order to raise any issues that challenged the validity of his plea.

Moreover, we also reject Balls contention that Shelton is distinguishable from the instant case because it dealt with a defendants section 654 challenge to the sentence imposed there. Although the defendant in Shelton raised a section 654 issue with respect to his sentencing, it is clear from the courts opinion that its holding applied to any situation in which the defendant was challenging the courts authority to impose a sentence within the maximum sentence provided by the plea bargain. (Cf. People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448 [court dismissed defendants appeal for failure to obtain a certificate of probable cause where defendant challenged courts authority to impose maximum sentence permitted under plea agreement, claiming the court lacked authority to impose the aggravated term based on aggravating factors not found true by a jury^[4]].) Accordingly, in view of Balls failure to obtain a certificate of probable cause, we conclude that his challenges to the sentence imposed on resentencing are not cognizable on appeal.

The Credits Issue

Ball contends the court erred by not including in his abstract of judgment 476 days of actual custody credit that Ball spent in custody from the day after his initial sentencing until the date of his resentencing. Respondent concedes but also contends that the court awarded Ball one day of presentence conduct credit to which he was not entitled. We agree with both contentions.

The court awarded Ball 398 days of presentence custody credit consisting of 346 days of actual custody credit and 52 days of conduct credit. Ball was in custody from the date of his arrest on March 10, 2005, through the date of his original sentencing on February 18, 2005. Thus, for this period he was entitled to 346 days of actual custody credit. Further, since Balls arson and assault with a firearm offenses are violent felonies (Pen. Code, 667, subd. (c)(8) & (10)), he was limited to earning only 15 percent conduct credit (Pen. Code, 2933.1, subd. (a)). Thus, Ball was entitled to only 51 days of presentence conduct credit (346 days x 15 % = 51.9 days).

Moreover, the court was required to determine the number of days Ball spent in custody, from the day after he was originally sentenced through the date of his resentencing and include this figure in his abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 41; 2900.1.) Thus, the court should have included 476 additional actual custody days in Balls abstract of judgment for the time he spent in custody from February 19, 2005 (the day after his original sentencing date), through June 9, 2006 (the date he was resentenced).

DISPOSITION

The judgment is modified to award Ball 397 days of presentence custody credit, consisting of 346 days of actual custody credit and 51 days of conduct credit, and 476 days of actual custody credit for the time Ball spent in custody from the day after his initial sentencing until the date of his resentencing. The trial court is directed to prepare an amended abstract of judgment that incorporates these modifications and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Levy, J.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 1170.1 1, in pertinent part provides: Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. (Italics added.)

^[3] Section 654, subdivision (a) provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

^[4] See Blakely v. Washington (2004) 542 U.S. 296.