People v. Harris CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD247880, SCD248197
- Trial judge
- Peter C. Deddeh
- Outcome
- modified — Affirmed as modified, with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Gilbert Nares
Analysis
The trial court sentenced Harris to prison, staying a prison prior enhancement and calculating custody credits starting one day after his parole hold was released. The Court of Appeal affirmed the judgment as modified, directing the trial court to strike the prior and award one additional day of custody credit.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Staying the prison prior enhancement under Penal Code section 667.5, subdivision (b) instead of striking it.“The parties properly agree the court may not stay the sentence on an enhancement in lieu of striking it. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Campbell (1999) 76 Cal.App.4th 305, 311.)” | de novo | error | agree with court The appellate court correctly identified that under California law, a trial court must strike an enhancement if it does not impose a consecutive term for it; it cannot simply stay the enhancement. The court relied on the correct binding authority (People v. Langston) to reach this conclusion. |
Calculating custody credits starting on July 14, 2013, rather than July 13, 2013 (the date the parole hold was released).“It is without dispute the trial court erred in the determination of the starting date for the calculation of credits. It is also true this appeal is viable for independent reasons and thus the idea of requiring defendants to correct calculations in the trial court to avoid the undue consumption of the appellate court's resources, does not clearly apply here.” | de novo | error | agree with court The appellate court found the trial court made a legal error in determining the start date for credits. It declined to apply the forfeiture rule of Penal Code section 1237.1 because the appeal was viable on independent grounds (the prior enhancement issue) and correcting the error on appeal was more efficient than remanding solely for this purpose. |
Authorities
- relied: People v. Langston (2004) 33 Cal.4th 1237 — A trial court may not stay an enhancement in lieu of striking it; it must either impose it or strike it.
- relied: People v. Campbell (1999) 76 Cal.App.4th 305 — Supports the proposition that enhancements cannot be stayed in lieu of being struck.
- relied: People v. Delgado (2012) 210 Cal.App.4th 761 — Distinguishes between legal errors and mathematical errors in credit calculations for purposes of the forfeiture rule in Penal Code section 1237.1.
The appellate opinion: sound — The opinion is sound because it correctly applies the binding authority from People v. Langston to the issue of the stayed enhancement. It also provides a reasonable, resource-based justification for bypassing the forfeiture rule in section 1237.1 given that the appeal was already properly before the court on independent grounds.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court sentenced Harris to seven years in case No. SCD247880 (plus a consecutive stipulated two years eight months in a second case), stayed rather than struck an admitted Penal Code section 667.5, subdivision (b) prison prior, and calculated presentence custody credits starting the day after his parole hold was released. The Court of Appeal held the stay was unauthorized and directed the trial court to strike the prior, declined to apply section 1237.1 forfeiture to the credit claim, ordered one additional day of custody credit, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Staying, rather than imposing or striking, the admitted section 667.5, subdivision (b) prison prior enhancement“The parties properly agree the court may not stay the sentence on an enhancement in lieu of striking it.” | de novo | error (law misapplied) | agree with court Under Langston and Campbell a trial court faced with a true finding or admission of a prison prior must either impose the one-year term or strike it under section 1385; a stay is an unauthorized sentence correctable on appeal regardless of objection. The People conceded the point and the court's remedy (remand with directions to strike and amend the abstract) matches the trial court's evident intent not to impose the term. |
Calculation of presentence custody credits beginning July 14, 2013 rather than July 13, 2013 (the date the parole hold was released), and the People's section 1237.1 forfeiture argument“It would be a waste of judicial resources to have Harris return to the trial court to correct an error that is clear on the record, when the case is already properly before us.” | de novo | error (fact finding unsupported) | agree with court The People conceded the extra day was owed; the only question was whether section 1237.1 barred the claim because it was not first raised below. The court reasonably followed Delgado's reading that section 1237.1 targets stand-alone appeals over arithmetic errors and does not bar a credit claim raised alongside other properly presented issues, a view consistent with the statute's purpose. The court did not cite the leading case articulating the 'other issues on appeal' exception, but the result is well supported and the error was undisputed on the record. |
Authorities
- relied: People v. Langston (2004) 33 Cal.4th 1237 — Once a prior prison term enhancement under section 667.5, subdivision (b) is found true or admitted, the trial court must either impose it or strike it; it may not stay it.
- relied: People v. Campbell (1999) 76 Cal.App.4th 305 — A trial court may not stay a prison prior enhancement in lieu of striking it; the proper remedy on appeal is to direct the court to strike the enhancement.
- relied: People v. Delgado (2012) 210 Cal.App.4th 761 — Section 1237.1's requirement that credit errors first be raised in the trial court does not bar review where the claimed error is one of law rather than mere mathematical miscalculation and the appeal is properly before the court on other grounds.
The appellate opinion: sound with gaps — The opinion correctly applies Langston and Campbell to the conceded error of staying the prison prior and reaches a sound, conceded result on the one-day credit error. Its treatment of section 1237.1 forfeiture is brief and rests on Delgado and judicial-economy reasoning without citing the fuller line of authority recognizing that the statute does not apply when other issues are properly on appeal, but the result is defensible.
Opinion
Filed 7/31/14 P. v. Harris CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064750
Plaintiff and Respondent, v. (Super. Ct. No. SCD247880, SCD248197) MARK FREDERICK HARRIS, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Peter C.
Deddeh, Judge. Affirmed as modified, with directions.
Steven J. Carroll, 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, Charles C. Ragland and Kimberley A. Donahue, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Mark Frederick Harris was convicted in two separate cases of multiple felonies. He was sentenced to prison in both cases. He appeals, challenging only the sentence in one of the cases. He argues the trial court should not have stayed a prison prior, rather the trial court was required to strike the prior. Harris also contends he is entitled to one more day of custody credit.
The People agree the court erred in staying, rather than striking the prison prior.
The People agree Harris is entitled to one more day credit, but contend the issue has been forfeited by failure to raise it in the trial court.
We will first direct the trial court to strike the prior. We will also order the court to award Harris one additional day of custody credit.
PROCEDURAL BACKGROUND
A. Case No. SCD247880 A jury convicted Harris of two counts of assault with a deadly weapon (Pen.
Code,1 § 245, subd. (a)(1)), and one count of battery with serious bodily injury (§ 243, subd. (d)). The jury found true an allegation of inflicting great bodily injury (§ 12022.7, subd. (a)). Harris admitted a prison prior (§ 667.5, subd. (b)).
The court sentenced Harris to a determinate term of seven years. The court stayed the sentence on the prison prior.
B. Case No. SCD248197 Harris entered pleas of guilty to three felony counts involving the possession of heroin and methamphetamine. The court imposed a stipulated sentence of two years 1 All further statutory references are to the Penal Code unless otherwise specified. 2 eight months. The sentence was ordered to run consecutively to the sentence in case No.
SCD247880.
DISCUSSION
I
THE PRISON PRIOR
At the time of sentencing the trial court decided not to impose a consecutive term for the prison prior admitted by Harris. The court stayed the term for that prior. The parties properly agree the court may not stay the sentence on an enhancement in lieu of striking it. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Campbell (1999) 76 Cal.App.4th 305, 311.) Accordingly, we will remand the case to the trial court with directions to strike the prison prior and to amend the abstract of judgment accordingly.
II
CUSTODY CREDITS
Harris contends the trial court erred in the calculation of credits, in that it did not start the calculation with the date of the release of his parole hold, but instead began the calculation with the following day. The People recognize that Harris would ordinarily be entitled to the extra day credit, however the People contend that Harris has forfeited the issue by failing to raise it in the trial court.
Harris was in custody on a parole hold at the time of his pretrial incarceration in this case. The parole hold was apparently based on conduct unrelated to the pending 3 charges. The parole hold was released on July 13, 2013, but the court's calculations were based upon July 14, 2013 as the correct starting date.
Section 1237.1 provides that an appeal shall not be taken on the basis of claimed error in the calculation of credits unless the matter has first been presented in the trial court.
Harris contends that section 1237.1 does not apply here because the trial court properly calculated the credits, assuming July 14 was the starting day. Relying on People v. Delgado (2012) 210 Cal.App.4th 761, 766-767, Harris contends this case does not fall into the forfeiture rule of section 1237.1. He argues the error is a legal error, not a mathematical error and that in any event, the appeal was properly brought on independent grounds.
We recognize the People argue we should apply forfeiture, however we decline to do so. It is without dispute the trial court erred in the determination of the starting date for the calculation of credits. It is also true this appeal is viable for independent reasons and thus the idea of requiring defendants to correct calculations in the trial court to avoid the undue consumption of the appellate court's resources, does not clearly apply here. It would be a waste of judicial resources to have Harris return to the trial court to correct an error that is clear on the record, when the case is already properly before us. Given the circumstances of this case, we decline to require the defendant to serve an additional day in custody because trial counsel missed an obvious error.
4 DISPOSITION
The superior court is directed to strike the prior conviction under section 667.5, subdivision (b). The court is also directed to grant Harris one additional day of custody credit. In all other respects the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
Cites, in this corpus
- People v. Delgado No. F063396 · 2012-10-26
- People v. Langston S115998 · 2004-08-16
- People v. Campbell D032071 · 1999-11-18