Filed 1/30/15 P. v. Gutierrez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040806
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. C1234852, C1242351)
v.
ROY GUTIERREZ,
Defendant and Appellant.
On March 12, 2013, in case No. C1242351 (hereafter the robbery case) Roy
Gutierrez (appellant) pleaded guilty to two counts of second degree robbery. (Pen. Code,
§§ 211, 212.5, subd. (c).)1 Appellant admitted that he committed the offenses for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)), and that he had suffered a
prior strike conviction as a juvenile.
After granting appellant’s Romero motion2 to strike the juvenile strike
adjudication, on June 7, 2013, the court sentenced appellant to two years in prison,
awarded him credit for time served of 282 days and imposed a restitution fine of $240.
The court struck the punishment for the gang allegation.
Subsequently, in case No. C1234852 (hereafter the drug case)3 while appellant
was serving his sentence in the robbery case, appellant asked the court to exercise its
1
All unspecified section references are to the Penal Code.
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
Back on June 19, 2012, the Santa Clara County District Attorney had filed a
(continued)
discretion under section 1385 to strike his juvenile strike adjudication before sentencing
him in his drug case.4 On November 20, 2013, the court denied the request.
On January 31, 2014, the court imposed an aggregate term of 44 months for both
the drug case and the robbery case. The court imposed the low term of 16 months for the
drug conviction, doubled to 32 months because of the strike. The court imposed a
consecutive sentence of one year on one of the robbery counts (one third the midterm)
and a concurrent two-year term on the second robbery count.
Relevant to the issues on appeal, in the drug case, the court awarded appellant
550 days of custody credits—479 actual days and 71 days of conduct credits. In the
robbery case, the court imposed fines and fees ordered by the original sentencing judge in
the robbery case, except the court increased the restitution fine and parole revocation fine
to $480 each.
On appeal, appellant argues that the court lacked authority to increase the
restitution fine and parole revocation fine in the robbery case when the court resentenced
him. Furthermore, he argues that he is entitled to an additional six days of custody credit
in the drug case.
Discussion5
Increase in Fines
Relying on California Rules of Court, rule 4.452.3, appellant argues that in
resentencing him, the court had no authority to increase the restitution fine and parole
complaint in which the prosecutor charged appellant with possession of
methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The complaint contained
the same allegation of a juvenile strike allegation. On the same day, appellant pleaded
guilty as charged and admitted the strike allegation. The court deferred entry of
judgment (DEJ), placed appellant on probation and ordered that appellant complete a
drug treatment program.
4
The court had declared DEJ a “failure” on October 10, 2012.
5
The facts underlying appellant’s convictions are not relevant to the issues on
appeal.
2
revocation fine to $480 each. The People counter that appellant has forfeited this claim
by failing to raise it in the trial court.
In People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the defendant
challenged a $270.17 booking fee for insufficient evidence. (Id. at p. 592.) The Third
District Court of Appeal affirmed the booking fee order, finding that the defendant had
failed to object at the time the fee was imposed and thus had failed to preserve the issue.
(Ibid.) The Supreme Court affirmed the Third District court’s reasoning. The defendant
argued that booking fee orders result from the application of “ ‘an objective legal
standard’ ” akin to orders for involuntary HIV testing under section 1202.1 and People v.
Butler (2003) 31 Cal.4th 1119.6 (McCullough, supra, at pp. 596-597.)
The Supreme Court disagreed with the defendant’s argument in McCullough. The
court held “that because a court’s imposition of a booking fee is confined to factual
determinations, a defendant who fails to challenge the sufficiency of the evidence at the
proceeding when the fee is imposed may not raise the challenge on appeal.”
(McCullough, supra, 56 Cal.4th at p. 597.) The McCullough court noted that a
“defendant’s ability to pay the booking fee . . . does not present a question of law . . . .”
(Ibid.) The court explained, “Defendant may not ‘transform . . . a factual claim into a
legal one by asserting the record’s deficiency as a legal error.’ [Citation.] By ‘failing to
object on the basis of his [ability] to pay,’ defendant forfeits both his claim of factual
error and the dependent claim challenging ‘the adequacy of the record on that point.’ ”
(Ibid.) The court concluded that “because a court’s imposition of a booking fee is
confined to factual determinations, a defendant who fails to challenge the sufficiency of
6
In People v. Butler, supra, 31 Cal.4th at page 1123, the Supreme Court considered
whether a defendant could appeal involuntary HIV testing orders that he or she had not
contemporaneously challenged. The court held that “a defendant may challenge the
sufficiency of the evidence” to support imposition of an involuntary HIV testing order
“even in the absence of an objection.” (Ibid.)
3
the evidence at the proceeding when the fee is imposed may not raise the challenge on
appeal.” (Ibid.)
The People urge us to adopt the Supreme Court’s analysis in McCullough and
apply it to the restitution fine at issue here. This we decline to do.
Importantly, in McCullough, in contrasting People v. Butler, supra, 31 Cal.4th
1119, with the facts before the court, the McCullough court noted that its analysis in
Butler “flowed from . . . recent sentencing forfeiture cases; we would review an appellate
challenge not based on a contemporaneous objection if the trial court had been acting in
excess of its authority.” (McCullough, supra, 56 Cal.4th at p. 595, italics added.)
Here, in the context of resentencing in multiple cases, California Rules of Court,
rule 4.452(3) provides, “Discretionary decisions of the judges in the previous cases may
not be changed by the judge in the current case.” A trial court’s decision to fix the
amount of a restitution fine at a particular level is a discretionary sentencing choice:
“The restitution fine shall be set at the discretion of court . . . .” (§ 1202.4, subd. (b)(1).)
Thus, the sentencing judge in the combined drug and robbery cases had no authority to
alter the amount of the restitution fine that the original sentencing judge in the robbery
case had imposed. (People v. Wiley (1994) 25 Cal.App.4th 159, 163 [the court has no
power to increase a restitution fine imposed as part of the sentence by an earlier court].)
The People argue that even if appellant has not forfeited this issue on appeal,
appellant’s claim fails because the trial court erroneously calculated the restitution fine at
the first sentencing hearing and therefore it was “proper for that amount to be corrected at
the subsequent proceeding.”
Before taking appellant’s plea in the robbery case, the court advised appellant that
the court would impose a restitution fund fine; the court stated that it would impose “the
minimum not to exceed $260 plus ten percent admin fee.” At the first sentencing hearing
4
in the robbery case, the probation officer recommended that the court impose a restitution
fine of $2,880 “under the formula permitted by Penal Code section 1202.4 (b)(2).”7
However, the probation officer recommended that the court impose a six-year prison
term.8 When the court imposed the restitution fund fine, the court stated that it was
ordering “[a] restitution fine of $240 imposed under the formula permitted by Penal Code
section 1202.4(B)(2).” The sentencing minutes from the hearing indicate that the court
imposed a $240 restitution fund fine.
The People argue that the court’s calculation of the restitution fund fine based on
the formula was incorrect. The People reason that because appellant was convicted of
two counts of robbery and sentenced to two years in prison at his original sentencing
hearing, his restitution fine should have been $960 ($240 x 2 x 2). Therefore when the
court resentenced appellant on January 31, 2014, the trial court applied the formula in
section 1202.4, subdivision (b)(2) correctly and calculated the restitution fine at $480
($240 x 1 x 2).
The People’s position assumes that the court at the first sentencing hearing
unequivocally intended to impose a restitution fund fine pursuant to the formula in
section 1202.4, subdivision (b)(2). Here, however, the record supports the conclusion
that the trial court unequivocally expressed its intent to impose the statutory minimum
restitution fund fine—“I’ll do the minimum . . . .”; the minimum fine of $240 is reflected
in the clerk’s minutes and the abstract of judgment from the original sentencing hearing.
7
Section 1202.4, subdivision (b)(2) provides, “In setting a felony restitution fine,
the court may determine the amount of the fine as the product of the minimum fine
pursuant to paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.”
8
Thus, taking the minimum fine in effect when appellant committed his crimes in
2012—$240—the probation officer’s recommendation was correct. That is, $240
multiplied by six years, multiplied by two counts, equals $2,880.
5
Given our conclusion that the original restitution fund fine was $240, the court’s
increase of this fine at the combined sentencing hearing to $480 was unauthorized.
Accordingly, we will order that the sentencing minutes and abstract of judgment be
corrected to reflect a $240 restitution fund fine and $240 parole revocation fine.
Custody Credits
As noted, at the combined sentencing hearing, in the drug case, the court awarded
appellant 550 days of custody credits—479 actual days and 71 days of conduct credits.
Appellant points out that in the drug case he was arrested on June 15, 2012 and
was released when the court ordered deferred entry of judgment on June 19, 2012—a
period of five days. Thus, he argues that for this period of incarceration he is entitled to
five days of custody credit in the drug case. Appellant asserts that he was arrested in the
robbery case on October 5, 2012, and the court placed a hold on him in the drug case on
October 10, 2012. Thereafter he was sentenced on January 31, 2014. Thus, he argues
that the five days from October 5 to October 9 were attributable exclusively to his
detention in the robbery case. The remaining days from October 10, 2012 through and
including January 31, 2014 could be attributed to either the drug case or the robbery case
because he was detained in both cases starting on October 10, 2012. Appellant points out
that the court exercised its discretion to allocate those credits to the drug case. Appellant
argues that he is entitled to an extra six days of credit for the time he spent in custody in
the drug case from his initial arrest on June 15 to his release on June 19, 2012. The
People agree.
Initially, we note that in general a defendant is required to have the trial court
correct a miscalculation in presentence custody credits. (§ 1237.1 [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
6
court].) However, where, as here, there are other appellate issues to be decided, we may
simply resolve the custody credits issue in the interest of judicial economy. (People v.
Acosta (1996) 48 Cal.App.4th 411, 427-428.)
The record supports the conclusion that the trial court awarded appellant custody
credits in the drug case for his time in custody from the date he was deemed to have
unsuccessfully completed the DEJ program to the date of sentencing—October 10, 2012
to January 31, 2014—a period of 479 actual days plus 71 days conduct credit or 550 days
of presentence custody credit.9 The court failed to award appellant credit for his time in
custody from the date of his arrest in the drug case to the date he was released at the time
the court ordered DEJ—June 15, 2012 to June 19, 2012—a period of five days. Adding
the five days to the 479 days the court awarded, appellant is entitled to 484 actual days
plus 72 days of conduct credit—for a total of 556 days of presentence credit. We shall
order the abstract of judgment amended to reflect this correction.
Disposition
The case is remanded to the lower court to amend the abstract of judgment in case
No. C1242351 to reflect a restitution fund fine (§ 1202.4) of $240 and a parole revocation
fine (§ 1202.45) in the same amount (suspended unless parole is revoked). In case
No. C1234852 the court is ordered to amend the abstract of judgment to reflect
presentence custody credits of 556 days—484 actual days and 72 days of conduct credits.
As so modified the judgment is affirmed.
9
The court limited appellant’s conduct credits to 15 percent pursuant to
section 2933.1 because of the robbery conviction.
7
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
PREMO, J.
The People v. Gutierrez
H040806