Filed 5/11/15 P. v. Gomez CA4/2

                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E061234

v.                                                                        (Super.Ct.No. FSB14849)

FERNANDO REY GOMEZ,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell IV, Judge. Affirmed with directions.

         William D. Farber, 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, Peter Quon, Jr., and Randall D.

Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

         On December 1, 2006, defendant and appellant Fernando Rey Gomez pled guilty




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to voluntary manslaughter (count 1; § 192, subd. (a))1 and attempted voluntary

manslaughter (count 2; §§ 664, 192, subd. (a)). The court sentenced defendant to a

determinate period of incarceration of 19 years 4 months and awarded custody credits.

       On appeal, defendant contends the court later violated the terms of his plea

agreement by rescinding custody credits it previously awarded for time defendant spent

in prison. Defendant additionally contends the court failed to award him statutorily

mandated conduct credits for the time he spent in local custody. We agree with

defendant’s latter contention and shall award defendant conduct credits for the time he

spent in local custody. In all other respects, the judgment is affirmed.

                                 PROCEDURAL HISTORY

       On October 6, 1998, a jury convicted defendant of murder (count 1; § 187, subd.

(a)) and attempted murder (count 2; §§ 664, 187, subd. (a)). The jury also found true

allegations defendant had personally used a firearm in his commission of both the count 1

and 2 offenses (§ 12022.5, subd. (a)) and that he had inflicted great bodily injury in his

commission of the count 2 offense (§ 12022.7, subd. (a)). On November 4, 1998, the

court sentenced defendant to an indeterminate term of incarceration of 28 years to life.

       On January 11, 2005, the United States District Court, Central District of

California, Eastern Division, granted defendant’s petition for writ of habeas corpus in




       1   All further statutory references are to the Penal Code unless otherwise indicated.



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part and directed the superior court to vacate defendant’s judgment of conviction.2 On

December 1, 2006, defendant pled guilty to voluntary manslaughter (count 1; § 192,

subd. (a)) and attempted voluntary manslaughter (count 2; §§ 664, 192, subd. (a)).

Defendant additionally admitted allegations that he personally used a firearm (§ 12022.5,

subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). In return, defendant

received a determinate sentence of 19 years 4 months in state prison with credit for 3,973

days including 3,455 days of actual custody credit and 518 days of conduct credit.

       On April 9, 2014, a correctional case records analyst with the Division of Adult

Institutions Legal Processing Unit sent the court a letter noting that the court had

incorrectly awarded defendant custody credits for time defendant spent in prison: “It is

the responsibility of the Department of Corrections and Rehabilitation [CDCR] to

determine the amount of worktime credit to which an inmate is entitled from the date of

the initial sentencing.” The records analyst noted, “The defendant lost numerous days of

CDCR conduct credits due to disciplinary actions and zero credit earning status while in

CDCR custody.”

       The court responded on April 24, 2014, by ordering the preparation of “an

amended abstract showing 3,455 days actual credit as of 12/1/06. Do not include conduct

credits.” The clerk issued an amended abstract of judgment reflecting the award of 3,455

days of actual custody credit and zero days of conduct credit.

       On May 16, 2014, defendant filed a notice of appeal contending the amended

       2We took judicial notice of the district court’s order and judgment granting
defendant’s petition for writ of habeas corpus.


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abstract of judgment rescinding his award of conduct credits violated the terms of his plea

agreement. On May 27, 2014, defendant’s counsel at the time defendant entered the plea

filed a letter with the superior court requesting a hearing on the matter contending the

rescission of defendant’s conduct credits violated the terms of the plea agreement, the

court was still required to award conduct credits for time defendant spent in local

custody, and that the CDCR was estopped from requesting the amendment due to the

eight years that had passed since the court first entered judgment.

                                      DISCUSSION

       A.     Conduct Credits for Time Defendant Spent in Prison.

       Defendant contends the court’s rescission of the days of conduct credit the court

previously awarded him violated the express terms of his plea agreement. Defendant

maintains he is entitled to specific performance of the term of his plea agreement granting

him 518 days of conduct credit. We disagree.

       “Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted

according to general contract principles. [Citation.] Acceptance of the agreement binds

the court and the parties to the agreement. [Citations.] ‘“When a guilty [or nolo

contendere] plea is entered in exchange for specified benefits such as the dismissal of

other counts or an agreed maximum punishment, both parties, including the state, must

abide by the terms of the agreement.”’ [Citations.]” (People v. Segura (2008) 44 Cal.4th

921, 930-931, fn. omitted.)

       “‘Under certain circumstances, specific performance of the agreement is

warranted, but it is not a favored remedy for violation of a plea bargain. [Citation.] And,


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specific enforcement of a plea bargain is not a remedy required by the federal

Constitution. [Citation.]’ [Citation.] Moreover, specific performance is not an available

remedy when the negotiated sentence is invalid or unauthorized. [Citation.]” (People v.

Brown (2007) 147 Cal.App.4th 1213, 1224.)

       “If for any reason the court cannot effectuate the terms of a plea bargain, it must

permit the defendant to withdraw his guilty plea. [Citation.] The plea bargain must

comply with the statutory mandated sentence and the trial court has no discretion to

‘make its own ad hoc adjustment to fit what it perceives as equity and justice.’

[Citation.]” (People v. Jackson (1981) 121 Cal.App.3d 862, 869.) “Even if a defendant,

the prosecutor and the court agree on a sentence, the court cannot give effect to it if it is

not authorized by law. [Citation.]” (Ibid.)

       A court’s award of conduct credits for a defendant’s time spent in prison is

statutorily unauthorized. (People v. Brown (2004) 33 Cal.4th 382, 405; People v.

Buckhalter (2001) 26 Cal.4th 20, 31, 33 [“Clearly defendant is not entitled to section

4019 credits for his time in a state penitentiary”]; People v. Donan (2004) 117

Cal.App.4th 784, 792.) “‘[A] sentencing court abuses its discretion when it attempts to

determine prison behavior and worktime credits earned to date . . . .’ [Citation.]”

(People v. Honea (1997) 57 Cal.App.4th 842, 845 disapproved of on another ground in

People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.)

       Here, defendant expressly indicates he “is not seeking to withdraw his guilty plea.

He does not challenge the plea bargain. He is not seeking a remand to withdraw his plea.

He seeks specific performance of his plea agreement as the only appropriate remedy.”


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However, as noted above, the trial court is not statutorily authorized to grant defendant

conduct credits for time he served in prison even though the People, defendant, and the

court apparently agreed to such an award. Thus, defendant is not entitled to an award of

conduct credits for the time he spent in prison unless the CDCR awards the credits itself.

Therefore, the court’s decision to rescind defendant’s conduct credits, insofar as they

extended to his time spent in prison, was proper.

         B.     Local Conduct Credits.

         Defendant contends that regardless of whether he is entitled to conduct credits for

the time he served in prison, he is entitled to an award of conduct credits for the time he

spent in local custody. Defendant and the People agree the court was required to award

defendant a total of 178 days of conduct credit for the time he spent in local custody. We

agree.

         Where a defendant was sentenced to prison and his conviction was reversed on

appeal, defendant “is entitled to receive . . . conduct credits for phases I [presentence

local custody] and III [post reversal local custody] . . . .” (People v. Donan (2004) 117

Cal.App.4th 784, 792.) “A sentence that fails to award legally mandated custody credit is

unauthorized and may be corrected whenever discovered. [Citation.]” (People v. Taylor

(2004) 119 Cal.App.4th 628, 647; Donan, at p. 793.) Where a defendant’s conviction is

listed under section 667.5, subdivision (c), he is a person specified under section

subdivision (a) of section 2933.1 and, therefore, may not be awarded conduct credits

exceeding 15 percent of his actual period of confinement. (People v. Chism (2014) 58

Cal.4th 1266, 1337.)


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       Here, the court’s order amending the award of conduct credits failed to award

defendant his statutorily mandated conduct credits for the time he spent in local custody.

Defendant’s conviction for voluntary manslaughter is an offense listed under section

667.5, subdivision (c)(1); thus, he is entitled to accrue no more than 15 percent conduct

credits for the time he actually spent in local custody. These periods include the days

defendant spent in local custody prior to his original sentencing and the period between

January 11, 2005, the date the District Court granted his petition for writ of habeas

corpus, and December 1, 2006, the date he was sentenced again after entering a guilty

plea. Therefore, as agreed by the parties, defendant is entitled to local conduct credits

pursuant to section 2933.1 in the amount of 178 days.

                                      DISPOSITION

       The superior court is directed to amend the abstract of judgment to reflect an

award of 178 days of conduct credit. The corrected abstract of judgment shall be

forwarded to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                            J.

We concur:


HOLLENHORST
                 Acting P. J.


MILLER
                           J.


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