P. v. Haley CA1/2 filed
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Filed 3/30/11 P. v. Haley CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A127501 v. (Sonoma County Super. Ct. Nos. SCR-512426 & SCR-514499 RICHARD G. HALEY, Defendant and Appellant. Defendant Richard G. Haley appeals from his sentencing below, arguing that the trial court erred by failing to calculate all of the custody credits to which he was entitled, and requesting remand. The People concede remand is appropriate under the circumstances. We agree, reverse the trial court s rulings regarding the particular matters raised, and remand this matter to the trial court for further sentencing proceedings consistent with this opinion. BACKGROUND In July 2007, defendant pled no contest to counts in two different cases before the Sonoma County Superior Court. He pled no contest to one count of commercial burglary (Pen. Code, § 4591) and one count of receiving a stolen vehicle (§ 496d, subd. (a)) in case No. SCR-512426, and to one count of commercial burglary with an enhancement for 1 All further statutory references are to the Penal Code unless otherwise stated. 1 committing a felony while released on bail or on one s own recognizance (§ 12022.1) in case No. SCR-514499. The court accepted defendant s pleas, found him guilty of the charges, and subsequently imposed a sentence consisting of a term of two years for the convictions in case No. 512426, a consecutive eight-month term for the conviction in case No. 514499, and an additional consecutive two-year term for the enhancement in case No. 514499, for an aggregate term of four years and eight months in state prison. The court, finding that defendant was addicted to drugs or in imminent danger of addiction, stayed execution of the sentence and ordered defendant committed to the California Rehabilitation Center (CRC), where the probation report stated he was from October 23, 2007, to October 19, 2008. In November 2009, in a third Sonoma County Superior Court case (SCR-566196), defendant pled no contest to one count of cashing a fraudulent check (§ 476a, subd. (a)). The court found defendant in violation of probation. In early 2010, it imposed defendant s original 2007 sentences for case Nos. 512426 and 514499, and in case No. 566196, sentenced defendant to a two-year term to be served concurrently with the sentence in case No. 514499. The court awarded certain credits for time served. During sentencing, defendant, via counsel, inquired whether the court was going to determine and award him presentence custody credit for the time he spent at CRC in 2007 and 2008. Defendant also indicated he had spent time at a residential facility for substance abusers called Turning Point, which he contended was missing from the probation report s calculation of custody credits due him. He calculated that he was entitled to about five months more of credits for his time spent at CRC and Turning Point. The court stated that the CRC credits will be addressed in state prison, and that it did not have the power to address the issue. Defendant filed timely notices of appeal. He subsequently petitioned the superior court for a writ of habeas corpus, contending that he was not issued sufficient credits at his sentencing hearing on grounds that he also raises in this appeal. After correcting a 2 mathematical error, the court denied the petition because of the issues pending before this court. In his appellate briefing, defendant originally raised four issues. However, in March 2011, while his appeal was pending, we granted his request to withdraw and abandon certain arguments, and we do not address those matters herein. At the same time, defendant also moved to expedite and shorten the time for his appeal, calendar preference, summary reversal, and an early issuance of remittitur. We granted his request to expedite the appeal, but denied his request for summary reversal and early remittitur. DISCUSSION Defendant argues that the sentencing court erred when it ruled it should not determine defendant s presentence custody credits for the time he spent at the CRC and Turning Point. He requests we remand this matter to the trial court with instructions to the court to address these issues. The People agree that remand is appropriate to determine if defendant is entitled to additional credits. We agree as well. As the background facts indicate, defendant has met the requirement of section 1237.1 that he first present his claims of miscalculated presentence custody credits to the trial court. Regarding defendant s time spent in CRC, section 2900.5 provides that the court imposing sentence shall determine the number of days of presentence custody credits to which a defendant is entitled, while the incarcerating agency is to apply these credits. (§ 2900.5, subds. (a)-(e); see also People v. Kading (1988) 204 Cal.App.3d 1500, 1511 [stating about a previous version of the statute, [a]lthough the trial court may doubtless ask for assistance . . . the determination of these custody credits remains the court s responsibility ].) The Penal Code further provides that time spent as an inpatient at CRC is creditable against a term of imprisonment in state prison to which a defendant may be sentenced. (§ 1203.03, subd. (g).) We agree that the court erred in concluding that it was not to determine what credits, if any, defendant was entitled to for time spent in CRC. We reverse that ruling, and remand for further sentencing proceedings to determine what, if any credits, defendant is entitled to for time spent in CRC. 3 Regarding defendant s time spent in Turning Point, section 2900.5 also provides that a defendant convicted of a felony or misdemeanor, including by plea, is entitled to presentence custody credits for time spent in a halfway house, rehabilitation facility . . . or similar residential institution . . . . (§ 2900.5, subd. (a).) As the People point out, however, we cannot determine from the record if defendant is entitled to credits for the time he spent at Turning Point. The presentence report prepared for defendant s 2010 sentencing makes reference to the facility, but not its nature or the dates defendant was there. It is not clear if Turning Point is of a nature that brings it within the meaning of section 2900.5, nor whether defendant s time there was included in the presentence report calculation of his time at CRC. Nonetheless, section 2900.5 required the trial court to determine what credits, if any, defendant was entitled to for his time in Turning Point at sentencing. (§ 2900.5, subds. (a)-(e).) The court erred by ruling otherwise. We reverse this ruling as well, and remand for further proceedings. The People also argue that the trial court should address on remand whether the court s order issued in the habeas corpus proceeding below correcting an error in the calculation of defendant s presentence custody credits was itself erroneous. The People do not establish that it has properly raised this issue before this court in the context of defendant s appeal, and we decline to address it further. DISPOSITION We reverse the trial court s ruling that it did not need to determine the amount of credits, if any, defendant was entitled to for the time he spent in CRC and Turning Point, and remand for the court to determine these issues consistent with this opinion. 4 The trial court shall include any additional credit awarded on an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation. _________________________ Lambden, J. We concur: _________________________ Kline, P.J. _________________________ Richman, J. 5
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