Filed 11/17/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C092118
Plaintiff and Respondent, (Super. Ct. No. 18CF07984)
v.
WILLIAM STANLEY ROSEBERRY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte County, Kristen A.
Lucena, Judge. Affirmed.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein,
Supervising Deputy Attorney General, Stephanie A. Mitchell, Deputy Attorney General,
for Plaintiff and Respondent.
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Defendant William Stanley Roseberry committed multiple felonies while serving a
term in state prison. In connection with defendant’s second in-prison felony, the trial
court imposed a stand-alone state prison term of two years. Defendant contends the trial
court: (1) thereby contravened Penal Code section 1170.1, subdivision (c) (statutory
section references that follow are to the Penal Code), which governs sentencing for in-
prison felonies, because only one-third of the base term should have been imposed; and
(2) erred by failing to pronounce a single determinate term of imprisonment, “treat[ing]
this case as a stand-alone case, which it was not.” Because defendant has not carried his
burden to show error by an adequate record, we affirm.
FACTS AND PROCEDURAL HISTORY
In June 2015, defendant began serving a five-year term in state prison for willfully
inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)). While serving
that time, defendant brought a controlled substance into prison (§ 4573).
In December 2015, for defendant’s in-prison offense and pursuant to section
1170.1, subdivision (c), a trial court imposed a three-year prison term consecutive to the
five-year term defendant was already serving for the corporal injury offense.
In November 2018, a Butte County prosecutor filed a complaint alleging new in-
prison offenses, including that in October 2018 defendant failed to return to confinement
while temporarily released (§ 4530, subd. (c)).
In February 2019, defendant was transported with a detainer from state prison to
the Butte County jail to face the new charges.
In June 2019, the trial court granted defendant’s request to set bail, though it
appears defendant remained in county jail.
In January 2020, defendant pleaded “no contest” to the section 4530 offense, and
all remaining charges were dismissed. The trial court referred the matter to the probation
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department for a presentence report and scheduled the sentencing hearing for March
2020.
The February 2020 presentence report explained that a probation officer contacted
the California Department of Corrections and Rehabilitation (CDCR), and learned that
defendant’s “original projected parole date” of July 12, 2019, “was extended several
times due to in-custody disciplinary write-ups which occurred” in state prison after
defendant committed the instant offense and before his transfer to the Butte County jail.
The report explained that “as of February 4, 2020, [defendant’s] projected parole date is
June 4, 2020.”
Sentencing occurred on June 4, 2020, after the hearing was postponed three times
(twice on defendant’s motions). Another attorney specially appeared for defendant’s
counsel of record.
Specially appearing counsel explained that notes provided to him by counsel of
record indicated “[t]here was an issue where parole for [defendant] in a separate matter
had been extended to today’s date. . . . [¶] There is an issue regarding some of the
credits. He’s been in custody throughout the duration of this case doing dead time. [¶]
[Counsel of record] indicates that they are operating under the impression that
[defendant] had been off of parole in July of 2019 or he had but somehow it had been
extended to today’s date. So there’s a lot of dead time there.”
The trial court sentenced defendant to state prison for the middle term of two
years, and then queried a probation officer regarding credits for time served. The
probation officer said defendant had “zero custody days pursuant to” In re Rojas (1979)
23 Cal.3d 152. In Rojas “our high court . . . recognized” that section 2900.5(b)’s
requirement that credit “be given only once for a single period of custody attributable to
multiple offenses for which a consecutive sentence is imposed,” “means[ ] ‘a defendant is
not to be given credit for time spent in custody if during the same period he is already
serving a term of incarceration,’ ” “because the defendant would have been in custody
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serving the earlier sentence had there been no other matters pending.” (People v. Phoenix
(2014) 231 Cal.App.4th 1119, 1128.)
Specially appearing counsel “lodge[d] an objection to the zero credits on behalf
of” counsel of record, arguing that counsel of record “indicates there was an impression
that parole had concluded on July 2019, but it had been extended. That was something
that was not known to the parties until recently. I have no legal authority.”
Defendant addressed the trial court directly, “I have documentation that I paroled
out and documentation from this jail that I was getting credit for time served 7/9/19.”
Defendant timely appealed his sentence.
DISCUSSION
Defendant contends the trial court erred by imposing a “full and consecutive term”
for his second in-prison offense because he “already received that aggravated
punishment” when sentenced for his first in-prison offense, and he “was still serving the
original” term. Defendant maintains that section 1170.1, subdivision (c) required the trial
court to sentence him to one-third the midterm for his second in-prison offense.
The People argue section 1170.1, subdivision (c) is inapplicable, because
defendant “had completed his prison sentences for his outside and first in-prison offenses
before he was released on parole and sentenced on the current offense.”
In light of the incomplete record on appeal, we conclude that defendant has not
carried his burden to show trial court error by an adequate record. Accordingly, we
affirm the judgment.
Subdivision (a) of section 1170.1 explains that, generally, if a defendant is
convicted of multiple offenses and the trial court imposes consecutive terms, “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 . . . .”
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But subdivision (c) of section 1170.1 provides: “In the case of any person
convicted of one or more felonies committed while the person is confined in the state
prison . . . [and] the court imposes consecutive terms, the term of imprisonment for all the
convictions that the person is required to serve consecutively shall commence from the
time the person would otherwise have been released from prison. If the new offenses are
consecutive with each other, the principal and subordinate terms shall be calculated as
provided in subdivision (a). This subdivision shall be applicable in cases of convictions
of more than one offense in the same or different proceedings.” (Italics added.)
Subdivision (c) of section 1170.1 “speaks of consecutive terms for in-prison
offenses commencing ‘from the time the person would otherwise have been released
from prison,’ that is, from the time one is released from prison for the out-of-prison
offense or offenses initially causing the imprisonment. In this way the in-prison offenses
are punished more harshly. The first one becomes, in effect, a new ‘principal’ term rather
than one ‘subordinate’ to the outside offense term, as could occur under subdivision (a).”
(People v. Reed (1993) 17 Cal.App.4th 302, 305-306 (Reed).)
“Our Supreme Court has left open the question whether section 1170.1,
subdivision (c) (formerly subd. (b)) would allow a longtime inmate to commit a series of
in-prison offenses, be sentenced under the principal-subordinate scheme and then have
further in-prison offenses committed years later calculated only as further subordinate-
term time. (People v. McCart [1982] 32 Cal.3d 338, 345, fn. 8 [McCart].)” (Reed,
supra, 17 Cal.App.4th at p. 306.)
But the McCart court indicated that, for purposes of section 1170.1,
subdivision (c), it matters whether an inmate’s in-prison offenses are committed during
the original prison term for the out-of-prison offense, or during a term for an in-prison
offense. (Cf. McCart, supra, 32 Cal.3d at p. 345 [“commentators have suggested that a
single aggregate term should be calculated for all in-prison offenses committed during the
prisoner’s original prison term”], italics added.)
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Relatedly, we ruled recently that section 1170.1, subdivision (c) “does not apply
[when a] defendant completed the prison term he was serving before being sentenced on
the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 (Brantley),
italics added; id. at p. 922 [“a reading of the plain language of subdivision (c) makes
apparent that this provision does not apply once the prisoner has completed the sentence
he or she was serving when the in-prison crime was committed”].)
Here, defendant began serving a five-year term in state prison in June 2015. But
the record is silent regarding how many custody credits (if any) were calculated in
connection with that term. Then in December 2015, and pursuant to section 1170.1,
subdivision (c), a trial court imposed a three-year term for defendant’s first in-prison
offense, consecutive to the term for the out-of-prison offense. In October 2018--more
than three years after defendant was sentenced for his out-of-prison offense--defendant
committed his second in-prison offense.
On this record, it is unclear when defendant finished his original prison term and
began serving his term for his first in-prison offense. This is so because it is entirely
plausible that, when the trial court sentenced defendant for his out-of-prison offense, it
calculated at least one year and nine months of credit towards the sentence. If so,
defendant might have completed his original term before he committed his second in-
prison offense in October 2018. In that case, McCart indicates that defendant was not
entitled to the one-third of the base term rule, but properly was sentenced to a full
consecutive term.
Thus, because the record does not permit us to determine with any confidence
whether defendant completed his original prison term when he committed the offense at
issue now, we must affirm. (See People v. Mack (1986) 178 Cal.App.3d 1026, 1032
[“Appellant has the burden of showing error by an adequate record and has failed to
sustain his burden”].)
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Related to, and closer to the issue as framed by the parties, it is also unclear when
defendant was actually paroled (if ever), and therefore whether defendant was serving his
original term or any prison term when the trial court sentenced him on June 4, 2020.
Further complicating the analysis is the lack of clarity regarding whether--after the
February 2020 probation report was generated and before June 2020 sentencing--
defendant earned or forfeited any credits, thereby possibly advancing or pushing back his
projected parole date. (Cf. People v. Buckhalter (2001) 26 Cal.4th 20, 31, 33-34 [a
person serving a prison sentence, even when temporarily away from prison to permit
court appearances, can “shorten their determinate terms . . . by performing, or making
themselves available for participation, in work, training or education programs
established by the Director” of CDCR, and “[s]uch prison worktime credits, once earned,
may be forfeited for prison disciplinary violations and, in some cases, restored after a
period of good behavior. [Citations.] Accrual, forfeiture, and restoration of prison
worktime credits are pursuant to procedures established and administered by the
Director”].) (See Reed, supra, 17 Cal.App.4th at p. 307 [though a parolee is deemed in
custody until the expiration of the parole period, the parole period is not part of the
sentence].)
In February 2019, defendant was transported with a detainer from state prison to
the Butte County jail, and was granted bail in June 2019, though he remained in custody.
In February 2020, defendant’s projected parole date was June 4, 2020, which
coincidentally was the day the trial court actually sentenced defendant on the instant
offense. At the sentencing hearing, specially appearing counsel gave conflicting signals
to the trial court regarding when, if ever, defendant was paroled, when he explained that
counsel of record “indicate[d] that they are operating under the impression that
[defendant] had been off of parole in July of 2019 or he had but somehow it had been
extended to” the date of the hearing. Then defendant told the trial court that he had
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“documentation that [he] paroled out and documentation from this jail that I was getting
credit for time served 7/9/19.”
Thus, the record does not establish whether defendant was sentenced while serving
his original term, his term for the in-prison offense, or any term. Accordingly, we cannot
(and therefore do not) resolve the parties’ dispute whether defendant was on parole at the
time sentence was imposed in the instant matter.
Viewed through the lens of Brantley, and given this incomplete record, it is fatal to
defendant’s claim that he has not shown that when he was sentenced on June 4, 2020, he
was still serving a prison sentence. (See Brantley, supra, 43 Cal.App.5th at p. 922
[section 1170.1, subdivision (c) is inapplicable at sentencing “once the prisoner has
completed the sentence he or she was serving when the in-prison crime was
committed”].)
Defendant’s attempt to distinguish Brantley is unpersuasive, because he concedes
that the record does not establish “whether or not [defendant] was still serving the
previous term when he was sentenced on the new offense.” That is precisely why we
must affirm.
Defendant argues the trial court erred by failing to pronounce a single aggregate
term, “as this case should have been treated as the subordinate term to the last two
terms.” The People argue the trial court did not err, because defendant “had completed
his prison sentences on his outside and first in-prison offenses before he was sentenced
on the current offense.”
Our resolution of defendant’s first claim also resolves his second claim. Because
the record is unclear if defendant was paroled before imposition of sentence (and
therefore whether defendant was serving a term of imprisonment at the time sentence was
pronounced), we cannot say that the trial court should have pronounced a combined
sentence of consecutive determinate terms. (Cf. People v. Nunez (2008) 167 Cal.App.4th
761, 765 [“ ‘[M]ultiple consecutive determinate terms must be combined into a single,
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“aggregate term of imprisonment for all [such] convictions” [citation] that merges all
terms to be served consecutively’ ”], italics added.)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
MURRAY, J.
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