THE PEOPLE, Plаintiff and Respondent, v. MATHEW JAMES JACOBS, Defendant and Appellant.
No. H038082
Sixth Dist.
Oct. 1, 2013
220 Cal. App. 4th 67
Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ELIA, J.—Pursuant to a plea bargain, Mathew James Jacobs pleaded no contest to forcible rape (
I
PROCEDURAL HISTORY
Defendant was arrested on July 22, 2011. The record reflects that bail in the amount of $50,000 was posted on defendant‘s behalf by Luna Bail Bonds on July 23, 2011.
On August 15, 2011, a complaint was filed in case No. CR-11-01306. It alleged that defendant had committed forcible rape in violation of
Defendant was arraigned on August 16, 2011. The minute order indicates a bond and specifies that defendant waived time and entered pleas of not guilty.
Defendant was arrested on unrelated charges on September 17, 2011.
On September 20, 2011, a complaint was filed in case No. CR-11-01572. It alleged that defendant had committed four offenses against one victim: forcible rape on or about July 8, 2011 (
Dеfendant was arraigned the same day. Defendant waived time and entered pleas of not guilty.
The September 27, 2011 minute order in case No. CR-11-01306 reflects that defendant was “released on bail posted.” The September 27, 2011 minute order in case No. CR-11-01572 indicates that defendant was in custody and bail was set at $200,000 in that case.
On October 18, 2011, in case No. CR-11-01306, the matter was continued on defendant‘s motion. The October 18, 2011 minute order in case No. CR-11-01306 reflects a bond. The next hearing was set for November 15, 2011.
On November 15, 2011, in cases Nos. CR-11-01306 and CR-11-01572, the next hearing dates were scheduled. The preliminary еxaminations in those cases were set for December 19, 2011. The November 15, 2011 minute order in case No. CR-11-01306 reflects that defendant was released in that case and “in custody on other charges.” The November 15, 2011 minute order in case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200,000.
On November 29, 2011, the court rescheduled the preliminary examinations for January 9, 2012, and set the next hearing date for January 3, 2012, in cases Nos. CR-11-01306 and CR-11-01572. The November 29, 2011 minute order in case No. CR-11-01306 reflects that defendant was “released on bail posted” in that case and “in custody on other charges.” The November 29, 2011 minute order in case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200,000.
On January 3, 2012, the January 9, 2012 date for thе preliminary examinations was confirmed in cases Nos. CR-11-01306 and CR-11-01572. The January 3, 2012 minute order in case No. CR-11-01306 reflects that defendant was released in that case and “in custody on other charges.” The January 3, 2012 minute order in case No. CR-11-01572 reflects that defendant was in custody and bail was set at $200,000.
On January 9, 2012, on motion of the People and pursuant to a plea bargain involving both cases, the court added a fifth count in case No. CR-11-01572 that charged defendant with committing a felony violation of
In case No. CR-11-01306, defendant pleaded no contest to committing a forcible rape in violation of
The presentencing probation reports recommended that the court impose a total term of 11 years in state prison. A Static-99R assessment that placed defendant in the moderate-high risk category was attached to the reports.
The probation report for case No. CR-11-01306 indicated that defendant was in San Benito County jail from July 22, 2011 (date of arrest for conduct leading to charges in that case), to July 23, 2011 (bond posted), and January 10, 2012 (the day after bond exonerated and “body only hold” imposed), to February 16, 2012 (the date of sentencing). It calculated that defendant had served 40 actual days and he was entitled to six days of conduct credit under the 15 percent limitation imposed by
The probation report for case No. CR-11-01572 indicated that defendant was in San Benito County jail from September 17, 2011 (the date of arrest for conduct leading to charges in that case), to January 9, 2012 (the date of OR release in that case after pleading). It calculated that defendant had served 115 actual days and he was entitled to 56 days of conduct credit, for total presentence credit of 171 days.
The sentencing hearing was held on February 16, 2012. The prosecutor urged the court to follow the recommendation of the probation reports and impose a total term of 11 years. The prosecutor argued that defendant had “lured his victims through means of communications: texting, Facebook” and defendant had physically injured the victim of the forcible rape. Defense counsel stated, “I think the offer and the indicated was 11 years, your Honor.” He indicated that was “our discussion” and “that‘s the reason he pled.”
The court imposed the middle term of six years for forcible rape and added an additional five years pursuant to
DISCUSSION
A. Alleged Ineffective Assistance of Counsel
Defendant now argues that his counsel‘s failure to argue for the minimum sentence within the plea-bargained range constituted ineffective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland).
A defendant claiming ineffective assistance of counsel must satisfy Strickland‘s two-part test requiring a showing of counsel‘s deficient performance and prejudicе. (Strickland, supra, 466 U.S. at p. 687.) As to deficient performance, a defendant “must show that counsel‘s representation fell below an objective standard of reasonableness” measured against “prevailing professional norms.” (Id. at p. 688.) “Judicial scrutiny of counsel‘s performance must be highly deferential,” a court must evaluate counsel‘s performance “from counsel‘s perspective at the time” without the “the distorting effects of hindsight,” and “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance ....” (Id. at p. 689.)
The prejudice prong requires a defendant to establish that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel‘s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different. [Citation.] This does not require a showing that counsel‘s actions ‘more likely than not altered the outcome,’ but the difference between Strickland‘s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86 [178 L.Ed.2d 624, 131 S.Ct. 770, 791-792].)
“[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness
Defendant first points out that he was a 21 year old at the time of the offenses and he had no criminal record. These circumstances were reflected in the probation reports. He also mentions as circumstances in mitigation his accomplishments with respect to education and independence in the face of difficulties involving his family, citing to a letter attached to a probation report. The probation reports detail his education and employment. At the time of sentencing, the court indicated that it had read and reviewed the probation reports. (See
Defendant maintains that “defense counsel‘s failure to urge and argue the case for the minimum sentence in the indicated range undermines confidence in the outcome of the sentencing proceeding” and establishes his claim. The probation reports specified that on separate occasions defendant forced two female victims to have sexual intercourse. The victims were 18 years old and 16 years old. Defendant connected with his victims through Facebook or MyYearbook, social networking sites, and then met them in person. He brought them to his residence where the incidents occurred. Defendant has not identified any mitigating circumstances of which the court was unaware or which would have reasonably supported sentencing him to the lower, rather than the middle, term for forcible rape. He has not shown by reference to the record that there is a reasonable probability that the result of the sentencing hearing would have been different if defense counsel had highlighted the referenced letter and argued for the lower term. (See Strickland, supra, 466 U.S. at p. 694.)
Defendant refers us to People v. Cropper (1979) 89 Cal.App.3d 716 [152 Cal.Rptr. 555], a case in which dеfense counsel failed to adequately advocate for his client at sentencing. This authority predates Strickland and did not apply the Strickland standard of ineffective assistance.
Defendant‘s brief also contains a “see also” citation to United States v. Cronic (1984) 466 U.S. 648 [80 L.Ed.2d 657, 104 S.Ct. 2039] (Cronic) when discussing Cropper. Cronic recognized three categories of cases that constitute per se violations of the Sixth Amendment right to counsel with respect to which prejudice is presumed: (1) “the complete denial of counsel” (466 U.S. at p. 659) at a critical stage of trial, (2) counsel‘s failure “to subject the prosecution‘s case to meaningful adversarial testing” (ibid.), and (3) “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small [under the particular circumstances] that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial” (id. at pp. 659-660). Defendant has not explicitly argued
In any case, the Strickland standard applies to the alleged deficient performance of defense counsel at the sentencing hearing. (Cf. Bell v. Cone (2002) 535 U.S. 685, 697-698 [152 L.Ed.2d 914, 122 S.Ct. 1843] [Strickland, not Cronic, governed analysis of claim that defense counsel had rendered ineffective assistance at the capital sentencing hearing because “[t]he aspects of counsel‘s performance challenged by rеspondent—the failure to adduce mitigating evidence and the waiver of closing argument—are plainly of the same ilk as other specific attorney errors we have held subject to Strickland‘s performance and prejudice components“].) We reject defendant‘s ineffective assistance claim since we have found no reasonable probability that, but for trial counsel‘s alleged failings at the sentencing hearing, the court would have imposed a lesser sentence.
B. Presentence Credits
1. Basic Law
“Persons who remain in custody prior to sentencing receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction. (
Effective September 28, 2010, the Legislature amended
The current version of
2. Credit for Actual Time Spent in Presentence Custody
a. Governing Legal Principles
The California Supreme Court has recognized that “there is no simple or universal formula to solve all presentence credit issues . . . ” but the “aim is to provide for
In Joyner and Bruner, the California Supreme Court recognized and applied a rule of “strict causation” to “cases involving the possibility of duplicate credit that might create a windfall for the defendant.” (In re Marquez, supra, 30 Cal.4th at p. 23.) Joyner involved criminal proceedings in California and Florida. (Joyner, supra, 48 Cal.3d at p. 489.) Joyner sought “presentence custody credits against his California sentence for custody time in Florida and California from the date a ‘hold’ was placed against him for the California offenses until he wаs sentenced in California, all of which time has already been credited against petitioner‘s Florida sentence.” (Ibid.) The court held: “[A] period of time previously credited against a sentence for
In reaching its holding in Joyner, the Supreme Court examined the purрoses for presentence credits: “(1) eliminating the unequal treatment suffered by indigent defendants who, because of their inability to post bail, serve a longer overall confinement for a given offense than their wealthier counterparts [citation] and (2) equalizing the actual time served in custody by defendants convicted of the same offense [citation].” (Joyner, supra, 48 Cal.3d at p. 494.) It noted that both “purposes are concerned with equalizing the treatment of different individuals each convicted in a single proceeding of the same offense or offenses.” (Ibid.)
In Bruner, supra, 9 Cal.4th 1178, the Supreme Court applied Joyner‘s “strict causation” test to a different factual scenario. Defendant Bruner was convicted of a new crime and received a prison sentence “cоncurrent” to a term he was already serving for violation of parole in another case. (Bruner, at p. 1180.) The defendant‘s “custody as a parole violator was based in part on the same drug incident that led to the later conviction, but also upon additional, unrelated grounds.” (Ibid.) The court reasoned: “[S]ection 2900.5 is intended to provide equitable treatment for one held in pretrial custody on mere charges of crime, not to give credit for time already being served and credited on another term or sentence for unrelated violations. In this case, once defendant began serving a parole revocation term founded upon multiple, unrelated acts of misconduct, his custody was unavoidable on that basis regardless of the fact that he was simultaneously awaiting trial on the single criminal charge. [Citation.]” (Id. at p. 1192.)
In Bruner, the court held: “[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was ‘a’ basis for the revocation matter as well.” (Id. at pp. 1193-1194.) Thus, “when presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding, the strict
In Bruner, the Supreme Court briefly discussed the second sentence of
This “accepted principle” was discussed in People v. Adrian (1987) 191 Cal.App.3d 868 [236 Cal.Rptr. 685]. The appellate court explained: “If the defendant is arrested and charged with multiple offenses, the presentence time is credited against the term imposed on each crime where concurrent sentences are imposed. (People v. Schuler (1977) 76 Cal.App.3d 324, 330 [142 Cal.Rptr. 798].) Thus, if the multiple crimes are prosecuted in a single proceeding and concurrent sentences are ordered, it makes no difference that the crimes were committed at different times.” (People v. Adrian, supra, 191 Cal.App.3d at pp. 875-876; see People v. Ayon (1987) 196 Cal.App.3d 1114, 1117 [242 Cal.Rptr. 300].)
People v. Kunath (2012) 203 Cal.App.4th 906 [138 Cal.Rptr.3d 81] extended this principle to simultaneous concurrent sentencing in multiple cases.
b. Actual Days in Presentence Custody
Defendant asserts in his opening brief that the credit calculations were incorrect and, pursuant to statute and case law applying it, he is entitled as a matter of statute and case law to have additional presentence custody to be credited against the concurrent sentences imposed in both cases Nos. CR-11-01306 and CR-11-01572. Defendant has the burden, “as the party claiming credit, to demonstrate his entitlement to credit” for any particular period. (People v. Huff (1990) 223 Cal.App.3d 1100, 1106 [273 Cal.Rptr. 44].)
People v. Gisbert (2012) 205 Cal.App.4th 277 [140 Cal.Rptr.3d 255], the only case cited by defendant in support of his argument, does not aid him. In that case, the court held that the defendant was “not entitled to any presentence custody credits because he would not have been free of custody but for his incarceration while awaiting trial on the second degree vehicle burglary charge, as he was already committed to state prison in connection with an earlier burglary conviction.” (Id. at p. 279.)
The People initially agreed with defendant‘s credit calculations, however, citing People v. Kunath, supra, 203 Cal.App.4th 906 (Kunath). We asked the parties to discuss in supplemental briefs, among other issues, Kunath‘s holding and its proper construction in light of the “attributable ” requirement of
In Kunath, the defendant was arrested for possession of a controlled substance for sale and then “released on bond.” (Kunath, supra, 203 Cal.App.4th at p. 909.) The defendant was arrested a short time later for an unrelated possession of a controlled substance and “confined pending trial.” (Ibid.) The defendant pleaded guilty in both cases. (Ibid.) When subsequently sentenced in those cases, the trial court imposed concurrent prison terms. (Ibid.) “The trial court rejected Kunath‘s argument that he should receive presentence custody credits in each case for the time he was in custody on both cases.” (Ibid., italics added.)
On appeal, defendant Kunath contended that “the trial court erred in refusing to apply presentence custody credits in each case for the time he was simultaneously in presentence custody.” (Kunath, supra, 203 Cal.App.4th at p. 909, italics added.) The appellate court agreed: “Where . . . the defendant‘s custody is solely presentence on all charges and he is simultaneously sentenced on all charges to concurrent terms, the policy behind
The appellate court in Kunath clearly recognized that “[s]ection 2900.5, subdivision (b) allows presentence credit to be given ‘only where the custody to be creditеd is attributable to proceedings related to the same conduct for which the defendant has been convicted.’ ” (Kunath, supra, 203 Cal.App.4th at p. 909, italics added.) Accordingly, we understand Kunath as holding, consistent with that statutory provision and with Bruner, that when a trial court imposes only concurrent sentences in multiple cases at the same time, a defendant is entitled to all presentence custody attributable to each of the proceedings so long as that custody has not been already credited to a previously imposed sentence. (See id. at pp. 909-911.) We do not read Kunath as authorizing credit for a period of custody that cannot be attributed to a proceeding. “Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon а defendant‘s liberty.” (In re Rojas (1979) 23 Cal.3d 152, 156 [151 Cal.Rptr. 649, 588 P.2d 789].) To the extent that Kunath may be construed as disregarding the “attributable” requirement and reaching a result that is inconsistent with the express language of
Defendant, who limited his appeal to a question of statutory application, now contends in his supplemental briefs that, if Kunath was wrongly decided, he has been disparately treated compared to “those pretrial detainees for whom bail has been formally revoked on the second arrest.” He insists that if he is not entitled to presentence custody credits in both cases for the entire period from September 17, 2011, to February 16, 2012, “by force of statute, he is by the force of the Equal Protection Clause of the Fourteenth Amendment.” He also maintains that “if Kunath is wrong, thеn trial counsel was ineffective for failing to move to exonerate bail” and he is “entitled to full credits . . . by virtue of his right to effective assistance of counsel as guaranteed by the Sixth Amendment.” We did not ask for additional briefing on issues unrelated to the proper credit calculation based on statute. We deem these new, alternative contentions waived. (See People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30 [75 Cal.Rptr.3d 588, 181 P.3d 947] [“Generally, a contention may not be raised for the first time in the reply brief. [Citation.]“]; Hibernia Sav. & Loan Soc. v. Farnham (1908) 153 Cal. 578, 584 [96 P. 9] [An appellant should “make the points on which he relies in his opening brief, and not reserve them for his reply, and that the court may properly consider them as waived unless so made. [Citations.]“].)
In his original briefs, defendant does not challenge the court‘s orders regarding his custody or release in cases Nos. CR-11-01306 and CR-11-01572 or claim ineffective assistance of counsel with respect to those orders. Accordingly, we do not consider whether the court erred or defense counsel should have done something to avoid defendant being, for the most part, in presentence custody on only one of the two cases.
Based on the record, credit for actual presentence custody from July 22, 2011, to July 23, 2012 (two actual days), and from January 9, 2012, to February 16, 2012 (39 actual days), a total of 41 (rather than 40) actual days, should have been awarded in case No. CR-11-01306. Credit for actual presentence custody from September 17, 2011, to January 9, 2012, a total of 115 actual days, was properly awarded by the trial court in case No. CR-11-01572. The People reach the same conclusions in their supplemental brief.
3. Conduct Credit
In their original briefs, the parties implicitly recognized that the presentence conduct credit authorized by law is limited by
In their supplemental brief, the People maintain that the trial court correctly calculated that defendant was entitled to six days of conduct credit in case No. CR-11-01306 and 56 days of conduct credit in case No. CR-11-01572. The trial court overlooked, as the People now seem to do, that
“[B]y its terms,
Accordingly, in case No. CR-11-01306, conduct credit is limited to six days’ conduct credit (41 x 0.15) and, in case No. CR-11-01572, conduct credit is limited to 17 days’ conduct credit (115 x 0.15). (See People v. Ramos, supra, 50 Cal.App.4th at pp. 816-817 [defendant entitled to greatest whole number of days that do not exceed 15 percent of actual period of presentence confinement].)
DISPOSITION
In case No. CR-11-01306, the judgment is modified to reflect 41 days of actual days’ credit plus six days of local conduct credit for total presentence credit of 47 days. In case No. CR-11-01572, the judgment is modified to
Rushing, P. J., and Premo, J., concurred.
A petition for a rehearing was denied October 23, 2013, and appellant‘s petition for review by the Supreme Court was denied January 15, 2014, S214499.