People v. Valencia CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS266686, SCS260211
- Trial judges
- Dwayne K. Moring; Ana L. Espana
- Outcome
- reversed in part — Affirmed in part; reversed in part and remanded.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Judith D. McConnell, Gilbert Nares
Analysis
The trial court sentenced the defendant to prison terms that exceeded the 364-day maximum for misdemeanors, miscalculated conduct credits, and failed to stay a sentence under Penal Code section 654. The Court of Appeal reversed in part, ordering resentencing with corrected credits, sentences capped at 364 days, and a proper section 654 stay.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Miscalculation of Penal Code section 4019 conduct credits“The trial court erred by awarding him one less day of section 4019 conduct credit than that to which he was entitled.” | de novo | error | agree with court The court correctly applied the amended statute (Stats. 2011, ch. 15, § 482) which mandates day-for-day credit for offenses committed after the amendment date. Since the defendant was awarded 269 days of actual custody, he was legally entitled to 269 days of conduct credit, not 268. The People conceded the error, and the legal basis is clear. |
Imposition of 537-day misdemeanor sentences on counts 2 through 5“misdemeanor sentences cannot exceed 364 days in county jail. (§ 18.5.) Therefore, the court's sentences on counts 3 through 5 are unauthorized.” | de novo | error | agree with court The trial court imposed sentences of 537 days for misdemeanor convictions. Under Penal Code section 18.5, the maximum term for a misdemeanor is 364 days. The appellate court correctly identified that the trial court's imposition of 'time served' credits effectively created unauthorized sentences exceeding the statutory maximum. |
Failure to stay sentence on count 4 pursuant to Penal Code section 654“The court should have imposed its sentence on count 4 and then stayed the execution of that sentence pursuant to section 654. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Sweeney (2014) 228 Cal.App.4th 142, 154.)” | de novo | error | agree with court Section 654 prohibits punishing a single act or omission under more than one provision. The People conceded that the possession and use of the same small amount of methamphetamine did not support separate criminal intents. Therefore, the trial court erred by imposing concurrent sentences rather than staying the execution of one count. |
Authorities
- relied: People v. Duff (2010) 50 Cal.4th 787 — Establishes the requirement to stay sentences for counts arising from the same act or omission under Penal Code section 654.
- relied: People v. Sweeney (2014) 228 Cal.App.4th 142 — Supports the application of section 654 to stay execution of sentences for multiple counts based on a single act or omission.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory maximum for misdemeanor sentences (Pen. Code, § 18.5) and the conduct credit rules (Pen. Code, § 4019) to the specific facts. It also correctly applies the well-established rule from People v. Duff regarding the stay of sentences under section 654 when multiple counts arise from a single act or omission.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Valencia after jury convictions for methamphetamine possession, paraphernalia possession, being under the influence, and misdemeanor vandalism, awarding 269 actual and 268 conduct-credit days, imposing concurrent 537-day terms on the misdemeanor counts, later resentencing count 2 as a Proposition 47 misdemeanor to 537 days, and running count 4 concurrently rather than staying it. On appeal, with the People conceding every point, the Court of Appeal reversed as to the conduct and custody credits, the over-364-day misdemeanor terms on counts 2 through 5, and the unstayed count 4 sentence, affirmed in all other respects, and remanded for resentencing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Award of 268 days of section 4019 conduct credit against 269 days of actual custody at the original sentencing“The trial court erred by awarding him one less day of section 4019 conduct credit than that to which he was entitled.” | de novo | error (statutory interpretation) | disagree with court The opinion itself states amended section 4019 gives two days of conduct credit for every two days served, which is the statute's four-days-deemed-served-for-every-two-days formula; under that formula an odd number of actual days yields conduct credit equal to the actual days rounded down to an even number, so 269 actual days earns 268 conduct days. Published decisions predating this opinion (People v. Chilelli; People v. Whitaker) so held, and the court accepted the People's concession without addressing them. The trial court's award appears to have been correct. |
Imposition of concurrent 537-day terms (credit for time served) on misdemeanor counts 3 through 5“However, misdemeanor sentences cannot exceed 364 days in county jail. (§ 18.5.) Therefore, the court's sentences on counts 3 through 5 are unauthorized.” | de novo | error (law misapplied) | agree with court A 537-day term exceeds the one-year maximum for any of these misdemeanors under any version of the law, so the sentences reflected in the minute order were unauthorized and may be corrected on appeal. The court's citation of the 364-day cap in section 18.5 is a small anachronism for a May 2014 sentencing (the cap took effect January 1, 2015), but it governs resentencing on remand and does not change the result. |
Proposition 47 resentencing of count 2 to 537 days as a misdemeanor“However, by so doing, the trial court erred by imposing a sentence on the then-misdemeanor count 2 greater than the 364-day maximum allowed for misdemeanors.” | de novo | error (law misapplied) | agree with court The March 2015 resentencing occurred after section 18.5's 364-day cap took effect, and a 537-day misdemeanor term exceeds that cap and the one-year maximum for Health and Safety Code section 11377 as a misdemeanor. The ruling is correct and the remedy of resentencing to no more than 364 days follows. |
Failure at the section 1170.18 resentencing to award custody credit for time served between the original sentencing and resentencing“Instead, it merely restated the number of credits awarded him at his original sentencing in May 2014 (i.e., 537 days).” | de novo | error (law misapplied) | agree with court A defendant resentenced under section 1170.18 is entitled to credit for all actual days in custody, including time served between the original sentencing and the recall; the court's directive to add 292 days is consistent with the dates in the record (May 16, 2014 to March 4, 2015). The opinion does not address any additional conduct credit for that period, but the point was not raised. |
Imposition of a concurrent sentence on count 4 (under the influence) rather than imposing and staying it under section 654“The court should have imposed its sentence on count 4 and then stayed the execution of that sentence pursuant to section 654.” | unclear | error (law misapplied) | agree with court Possession of 0.33 grams of methamphetamine and being under its influence, on the People's concession, reflected a single intent and objective, so section 654 bars separate punishment; Duff and Sweeney correctly state that the remedy is to impose and stay, not run concurrently. The court did not articulate a standard of review but the conceded facts support the result. |
Authorities
- relied: People v. Duff (2010) 50 Cal.4th 787 — When section 654 applies, the trial court must impose sentence on the barred count and stay execution rather than impose a concurrent term.
- relied: People v. Sweeney (2014) 228 Cal.App.4th 142 — A concurrent sentence is not a permissible substitute for a section 654 stay; the sentence must be imposed and stayed.
- missed: People v. Whitaker (2015) 238 Cal.App.4th 1354 — Under section 4019 as amended in 2011, conduct credit accrues in two-day increments, so a defendant with an odd number of actual custody days receives conduct credit equal to the actual days rounded down to an even number.
- missed: People v. Chilelli (2014) 225 Cal.App.4th 581 — Section 4019 conduct credits are computed in two-day increments for every two days actually served, so an odd number of actual days does not earn an additional conduct day.
The appellate opinion: sound with gaps — The rulings on the unauthorized misdemeanor terms, the Proposition 47 resentencing credits, and the section 654 stay are correctly decided with appropriate authority. The court accepted the People's concession on the one-day section 4019 shortfall without analyzing the statute's two-day increment formula or the published decisions holding that odd actual-day totals round down, so that portion appears wrong.
Opinion
Filed 11/5/15 P. v. Valencia 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, D066316
Plaintiff and Respondent, v. (Super. Ct. Nos. SCS266686, SCS260211) JOSEPH G. VALENCIA, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring and Ana L. Espana, Judges. Affirmed in part; reversed in part and remanded.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph G. Valencia appeals a judgment following his jury conviction of three drug-related offenses and misdemeanor vandalism. On appeal, he contends the trial court erred by: (1) miscalculating his Penal Code1 section 4019 conduct credits; (2) imposing 537-day misdemeanor sentences for all of his offenses; and (3) not staying the sentence for one of his offenses pursuant to section 654.2 The People concede the trial court erred as Valencia alleges.
FACTUAL AND PROCEDURAL BACKGROUND
Because Valencia challenges only the sentencing decisions of the trial court, we need not, and do not, discuss the facts underlying his convictions.
In February 2014, the jury found Valencia guilty of four offenses: (1) possession of methamphetamine (Health & Saf. Code, § 11377) (count 2); (2) possession of narcotics paraphernalia (Health & Saf. Code, former § 11364.1, subd. (a)) (count 3); (3)
being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a))
(count 4); and (4) misdemeanor vandalism (§ 594) (count 5). Valencia admitted the truth of allegations he had one prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and had served one prior prison term (§§ 667.5, subd. (b), 668).
In May, the trial court denied Valencia's motion to dismiss the prior strike allegation and sentenced him to a total term of three years eight months in prison. The 1 All statutory references are to the Penal Code unless otherwise specified.
2 Valencia initially contended his sentence must be vacated and remanded for resentencing under Proposition 47. However, in his reply brief, he withdrew that contention as moot, noting the trial court on March 4, 2015, granted his section 1170.18 petition for resentencing under Proposition 47.
2 court imposed a low term of 16 months for count 2, doubled to 32 months pursuant to the three strikes law, and a consecutive one-year enhancement for his prior prison term.
Separate concurrent terms of 537 days were imposed for each of his misdemeanor convictions on counts 3 through 5. The court awarded him 269 days of actual custody credit, plus an additional 268 days of section 4019 conduct credit. Valencia timely filed a notice of appeal.3 On February 27, 2015, the trial court granted Valencia's section 1170.18 petition to recall his sentence. On March 4, the court concluded Valencia was entitled to sentencing as a misdemeanant, resentenced him on count 2 to 537 days in custody, and ordered him released with credit for time served. On June 9, we granted Valencia's request to augment the record on appeal with the trial court's minute orders dated February 27, 2015, and March 4, 2015.
DISCUSSION
I
Section 4019 Conduct Credits Valencia contends, and the People agree, the trial court erred by not awarding him one additional day of section 4019 conduct credit. In originally sentencing Valencia to a 3 On February 3, 2015, Valencia filed a motion requesting judicial notice of: (1) excerpts from the transcript of a September 27, 2005, hearing of a United States House of Representatives subcommittee; (2) a research report on methamphetamine; and (3) former versions of section 4019 and associated legislative analysis. The People oppose judicial notice of items 1 and 2 and do not oppose judicial notice of item 3. We grant Valencia's motion in part and take judicial notice of the documents in item 3. We deny his motion to take judicial notice of the remaining items (items 1 and 2).
3 total term of three years eight months, the trial court awarded him 269 days of actual custody credit, plus an additional 268 days of section 4019 conduct credit.
In October 2011, section 4019 was amended, providing that most defendants can earn two days of conduct credit for every two days served in custody. (Stats. 2011, ch.
15, § 482.) Valencia's offenses were committed in August 2013. Therefore, under amended section 4019, he was entitled to day-for-day conduct credits. Because he was awarded 269 days of actual custody credit, he was entitled to 269 days of section 4019 conduct credits. The trial court erred by awarding him one less day of section 4019 conduct credit than that to which he was entitled.
II
Concurrent 537-Day Misdemeanor Sentences on Counts 2 Through 5 Valencia contends, and the People agree, the trial court erred by imposing concurrent 537-day misdemeanor sentences for each of his offenses on counts 2 through
5.
Counts 3 through 5. At Valencia's original sentencing in May 2014, the trial court imposed a low term of 16 months for count 2, doubled to 32 months pursuant to the three strikes law, and a consecutive one-year enhancement for his prior prison term. The court denied probation for counts 3 through 5 and granted Valencia credit for time served (i.e., 537 days) on those counts. Its minute order reflects the imposition of concurrent sentences of 537 days on counts 3 through 5.
Valencia correctly asserts the trial court erred by imposing concurrent sentences of 537 days for each of counts 3 through 5, all of which were misdemeanor offenses. By 4 awarding him 537 days credit as "time served," the court, in effect, imposed sentences of 537 days for each of counts 3 through 5. However, misdemeanor sentences cannot exceed 364 days in county jail. (§ 18.5.) Therefore, the court's sentences on counts 3 through 5 are unauthorized. Valencia requests, and we agree, that his sentences on counts 3 though 5 should be vacated and he be resentenced on those counts as misdemeanors with sentences of no more than 364 days.
Count 2. The trial court originally sentenced Valencia to a term of 32 months for his count 2 offense (Health & Saf. Code, § 11377 [possession of methamphetamine]).
However, on February 27, 2015, the trial court granted Valencia's section 1170.18 petition to recall his sentence. On March 4, it concluded he was entitled to sentencing as a misdemeanant, resentenced him on count 2 to a sentence of 537 days' custody, and ordered him released with credit for time served. However, by so doing, the trial court erred by imposing a sentence on the then-misdemeanor count 2 greater than the 364-day maximum allowed for misdemeanors. (§ 18.5.) Valencia requests, and we agree, that his sentence on count 2 should be vacated and he be resentenced on that count as a misdemeanor with a sentence of no more than 364 days.
Credits. Valencia also correctly asserts the trial court at his section 1170.18 resentencing on March 4, 2015, did not award him credit for the days he spent in custody between his original sentencing (May 16, 2014) and his resentencing (March 4, 2015).
Instead, it merely restated the number of credits awarded him at his original sentencing in May 2014 (i.e., 537 days). On remand of this matter, the court should award Valencia additional credit for those days served in custody (i.e., 292 days).
5 III
Stay of Count 4 Sentence Pursuant to Section 654 Valencia contends, and the People agree, the trial court erred by imposing a concurrent sentence on count 4 rather than imposing and staying execution of that sentence pursuant to section 654. Section 654 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."
In this case, Valencia was convicted on count 2 of possession of methamphetamine (Health & Saf. Code, § 11377) based on his possession of 0.33 grams of methamphetamine, and on count 4 of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The People concede that amount could be consumed in a short period of time and was insufficient to support a finding Valencia harbored two separate criminal intents when he possessed and used that methamphetamine. The court should have imposed its sentence on count 4 and then stayed the execution of that sentence pursuant to section 654. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Sweeney (2014) 228 Cal.App.4th 142, 154.) By not doing so, it erred.
DISPOSITION
The judgment is reversed to the extent the trial court: (1) awarded Valencia an incorrect number of section 4019 credits at his original sentencing and an incorrect number of custody credits on his resentencing; (2) sentenced him to custody greater than 6 364 days on counts 2 through 5; and (3) imposed a concurrent sentence for count 4 without staying execution of that sentence pursuant to section 654. In all other respects, the judgment is affirmed. The matter is remanded for resentencing consistent with the views expressed in this opinion.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
Cites, in this corpus
- People v. Sweeney CA4/2 E056132 · 2014-06-26