Filed 7/8/14 P. v. Tucker 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                         D064405

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD240113,
                                                                     SCD216068)
RANDY DEWAYNE TUCKER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County,

Runston G. Maino, 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, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland, Robin Urbanski and Amanda E. Casillas, Deputy Attorneys General,

for Plaintiff and Respondent.
       This case involves an appeal following imposition of a stipulated sentence as part

of a plea agreement which resolved three separate criminal cases. Appellant, Randy

Dewayne Tucker, challenges the manner in which the trial court calculated the stipulated

sentence, i.e., he argues the court should have imposed the sentences on two of the cases

consecutively, because that would have resulted in greater presentence custody credits

applied to the aggregate sentence. Additionally, he contends he is entitled to additional

credits for time in custody on alleged probation violations after he was arrested on

charges arising from new offenses.

       The People have responded that the appeal should be dismissed for failure to

obtain a certificate of probable cause (Pen. Code,1 § 1237.5) and that Tucker waived his

right to appeal the sentence. The People also contend the trial court appropriately

imposed concurrent sentences and that Tucker is not entitled to duplicate credits for the

probation revocation while he was in custody for his new offenses.

       We will reject the People's contentions that the appeal should be dismissed either

for failure to comply with section 1237.5 or on the basis of a waiver of appeal in the plea

agreement. We will also reject Tucker's challenge to concurrent sentences. We will find

that Tucker is entitled to additional credits on his sentence for case No. SCD216068 and

order the judgment modified accordingly. Except as modified, we will affirm the

judgment and sentence as imposed.




1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
                              PROCEDURAL BACKGROUND

         Tucker was on probation in case No. SCD216068 when he was arrested for new

offenses in case No. SCD240113. Ultimately Tucker entered a guilty plea in case No.

SCD240113 which called for a stipulated, aggregate sentence of 13 years in prison for

that case and case No. SCD216068. As part of the plea agreement, the prosecution

dismissed various counts and allegations and also dismissed pending case No.

SCD246873.2

         In case No. SCD216068 Tucker was originally sentenced to a determinate term of

four years four months in prison. Execution of the sentence was stayed and he was

granted probation. When the trial court imposed the sentence as part of the plea

agreement in case No. SCD240113, it imposed the previously stayed four-year four-

month sentence for case No. SCD216068. The sentence was ordered to be served

concurrently with the stipulated 13-year sentence imposed for case No. SCD240113.

Tucker was awarded presentence custody credits of 1,195 days in case No. SCD216068

and 868 days for case No. SCD240113.

         Tucker filed a timely notice of appeal but did not obtain a certificate of probable

cause.




2      This appeal does not raise any issue regarding the facts or nature of the underlying
offenses, therefore we will not lengthen this opinion with an unnecessary recital of the
facts and charges.
                                               3
                                      DISCUSSION

       At base, Tucker is attempting to increase the amount of presentence custody

credits to be applied against his 13-year sentence. The effect of concurrent sentencing

was that the credits applied to case No. SCD240113 were 868 days. However, although

there are a greater number of credits for case No. SCD216068, such credits will not

impact the total time to be served in case No. SCD240113. Tucker wants this court to

order consecutive sentencing, the effect of which would be to apply at least 1,195 days

credit against the total sentence. Additionally, Tucker seeks additional credits of 868

days of credit for case No. SCD216068 for the time spent in custody on the probation

revocation which followed his arrest in case No. SCD240113.

       In our efforts to sort out the competing contentions we will first address the

People's contentions that the appeal should be dismissed. We will then discuss the court's

imposition of concurrent sentences, and finally we will address the claim of entitlement

to additional credits in case No. SCD216068.

                                             I

                        SHOULD THE APPEAL BE DISMISSED

       The People contend the appeal should be dismissed for several reasons. First, they

contend Tucker was required to first obtain a certificate of probable cause in order to

proceed with this appeal. Second, they argue, albeit summarily, that Tucker has waived

his right to appeal the sentence in this case. Finally, the People argue section 1237.1 bars

the challenge to credits because the issue was not raised in the trial court. We summarily



                                             4
reject the latter contention because the issue was in fact raised in the trial court both by

written submission and by oral presentation.

                                      A. Section1237.5

       In order for a defendant to appeal challenging a guilty plea, such person must first

obtain a certificate of probable cause in the trial court. (People v. Voit (2011) 200

Cal.App.4th 1353, 1364.) Since this appeal is directed at the sentence imposed and not

the plea itself, Tucker contends the requirements of section 1237.5 do not apply.

       In People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon), the court clarified what

constitutes a challenge to a guilty plea that arises from a plea bargain with a stipulated

sentence. The court determined that a challenge to the stipulated sentence was an attack

on the plea itself and thus did require a certificate. Tucker argues, and we agree, the

challenge in this case does not attack the plea or the total sentence imposed. Rather, this

appeal addresses the discretionary decision by the trial court to select concurrent

sentences as opposed to consecutive sentences. The court's choice affected the credit

calculation but did not change the stipulated sentence.

       In People v. Buttram (2003) 30 Cal.4th 773, 776-777 (Buttram), the court again

addressed the issue of what constitutes a challenge to the underlying plea. There, the

parties agreed to a plea bargain which stated a maximum sentence agreement, rather than

a stipulated sentence. The appeal in Buttram challenged the trial court's discretionary

decision in the calculation of the sentence actually imposed. The court distinguished

Panizzon, supra, 13 Cal.4th 68, and concluded that a challenge to the exercise of a



                                               5
discretionary decision to select a sentence up to the maximum was not a challenge to the

plea itself and thus did not require a certificate of probable cause.

       We think this case is controlled by the court's analysis in Buttram, supra, 30

Cal.4th 773. Here the challenge is to the discretionary decision by the trial court to

calculate the sentence by the use of concurrent sentences rather than reaching the agreed

total sentence by means of consecutive sentences. In our view the challenge is of the

same nature as that in Buttram where the defendant was challenging the discretionary

sentencing choice that calculated a sentence within the agreed-upon maximum.

Accordingly, we find a certificate of probable cause was not required in order to

challenge the trial court's discretionary sentencing choice.

                                    B. Waiver of Appeal

       The respondent's brief makes a short argument that Tucker waived his right to

challenge the sentence on appeal. The comments are more of an observation that Tucker

initialed the appellate waiver on the plea form than it is an argument for waiver.

       There was considerable discussion of Tucker's waiver of appellate rights. Tucker

wanted to have his initials removed from the appellate waiver box on the form.

Ultimately he was given the opportunity to withdraw his plea or leave the initials as they

were. Tucker opted to continue with the plea. Later defense counsel advised the court he

had been ineffective on discussing the waiver issue. The trial court advised Tucker the

appellate court would have to decide if he could appeal any part of his sentence.

       The waiver in the form purported to give up the right to challenge the stipulated

sentence. It did not address the issue of a challenge to the credit calculation. Further, as

                                              6
we have discussed, this appeal does not challenge the aggregate sentence of 13 years.

Instead, it is a challenge to the discretionary sentencing choice of concurrent sentences,

which in turn impacts the available pretrial custody credits. Given the ambiguity of the

"waiver" and the inherent question of ineffective assistance of counsel, we have elected

to deal with the merits of the appeal and not to enforce any possible waiver.

                                              II

                               CONCURRENT SENTENCES

       In his written and oral submissions in the trial court Tucker advocated for

consecutive sentences for the obvious reason that he would get the benefit of a greater

number of custody credits as against the total sentence. Indeed, in his written submission

he contended the court had to impose consecutive sentences under section 669 unless the

court could find sufficient reasons to do otherwise.

       On appeal, Tucker contends the trial court's comments at sentencing indicated the

court did not know it had the discretion to sentence consecutively and therefore we

should remand the case to the trial court so that it can exercise its discretion. We are

satisfied the court acted well within its discretion in selecting concurrent sentencing as

the means of calculating the aggregate sentence. While we find the trial judge's

comments somewhat confusing and regrettable, we are not persuaded that the

experienced criminal law trial judge was unaware of one of the most basic rules of

sentencing, i.e., where there are multiple crimes, the trial court always has discretion to

choose between concurrent and consecutive sentences. We review the trial court's

decision, and not its ruminations.

                                              7
                                       A. Section 669

       Section 669 provides that where there are convictions for multiple crimes the court

has discretion, subject to the rules of court, to sentence consecutively or concurrently.

The statute does not establish a presumption in favor of either sentencing choice.

However, in cases where the trial judge fails to state a choice, the section provides, in

part: "Upon the failure of the court to determine how the terms of imprisonment on the

second or subsequent judgment shall run, the term of imprisonment on the second or

subsequent judgment shall run concurrently." (§ 669, subd. (b).) Thus, while the section

establishes a default position in the absence of a judicial determination, it does not

establish a presumption in favor of consecutive sentences or concurrent sentences.

(People v. Black (2007) 41 Cal.4th 799, 820-821.) Accordingly, section 669 plays no

part in the analysis of the trial court's discretionary decision favoring concurrent

sentences.

                                  B. Abuse of Discretion

       Prior to hearing argument at the time of the sentencing, the trial judge said: "And

what I -- why don't I go ahead and impose the sentence that I think I have to impose

according to the law, and it's along the lines of the credits as represented by the DA and

the probation department. I read all of the points and authorities you submitted on the

issue. As I told Mr. Tucker, I have an obligation to follow the law as I believe it to be,

not as I wish it to be. And, frankly, I wish I could give Mr. Tucker more credits than I

think the law allows him to have." Tucker contends these comments demonstrate the trial

judge did not understand the nature of his discretion. While we have no idea what the

                                              8
trial court meant, other than to appear to shift responsibility for his decision to the "law"

rather than himself. What we are sure of, however, is that the trial judge had read all of

the submissions, which debated in detail his discretionary choices. It would be wholly

unreasonable for us to construe these "feel good" comments as ignorance of the very

issues the court had read and considered.

       Sentencing decisions of the trial court are reviewed under the abuse of discretion

standard. (People v. Giminez (1975) 14 Cal.3d 68, 72.) In the sentencing context, the

trial court abuses its discretion when its sentencing choice " 'exceeds the bounds of

reason.' " (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.) We assume trial

judges are aware of the law and particularly their sentencing choices (See Evid. Code,

§ 664; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308 [it is presumed that the

trial court knows and applies the correct statutory and case law].)

       Realistically, Tucker does not challenge the choice of concurrent sentences as an

abuse of discretion. Rather, his challenge is based on alleged ignorance of the trial court

as to the scope of the court's authority. Otherwise there is nothing in case law, statute or

the Rules of Court that would render the choice of concurrent sentences in this case an

abuse of discretion. (People v. Black, supra, 41 Cal.4th at pp. 820-821.)

       Thus, while the trial judge's gratuitous comments created a possible appellate

issue, and could have been left unsaid, we do not construe the comments to indicate a

lack of awareness of the scope of the court's sentencing discretion. Accordingly, we find

no error in the court's choice of concurrent sentences.



                                              9
                                             III

                                  CASE NO. SCD216068

       Finally, we consider Tucker's claim that he is entitled to additional custody credits

for the time spent in custody after he was arrested on the probation violation allegations.

We agree that under controlling case law he is entitled to 868 additional days of credit for

case No. SCD216068.

       In the case of In re Joyner (1989) 48 Cal.3d 487, 489 (Joyner) the court addressed

the question of custody credits where the defendant is in custody on more than one case.

In Joyner, the defendant was in custody in Florida when California placed a hold on him

based on a separate case in that state. On appeal, Joyner contended he was entitled to

credits against his California sentence for the time he spent in Florida after the hold was

placed on him for the new case. The court rejected Joyner's claim.

       The court held a defendant is not ordinarily entitled to duplicate custody credits

where the person is already confined on one case and thereafter arrested on another case.

The question that must be decided in order to determine if the defendant is entitled to

credits against the sentence for the second case is whether, at the time of arrest on the

second case, the defendant was at liberty. (Joyner, supra, 48 Cal.3d at p. 489.) In the

case of a person who is on probation or parole and the person's parole or probation is

revoked after the filing of a new case, the court must decide if the revocation was based

on the same conduct as the new case. If the revocation and the new case are based on the

same conduct, then the person would have been at liberty at the time of the alleged

conduct. In short, if Tucker was out of custody until the new offenses and the probation

                                             10
revocation is based on the new offenses, he is entitled to credit in both cases for the time

spent in presentence custody.

       Tucker asserts the probation revocation allegations and the four-day revocation

hearing were based on the same conduct alleged in the new case, No. SCD240113. The

People have argued that the revocation included offenses to which Tucker has not pled

guilty and therefore he should not get credit in case No. SCD216068 for the time spent

after his arrest on the revocation. We disagree with the People's position.

       The question posed in Joyner, supra, 48 Cal.3d 487, was basically why was the

defendant in custody on the second case? Was the custody imposed for the same

behavior as the first case, in which circumstance the person would get credit? If the cases

involved separate behavior, the defendant would not have been at liberty at the time of

arrest on the second case. We believe the analysis is directed at the behavior alleged in

the respective cases. We do not believe Joyner's analysis can be avoided by pointing to

counts to which a guilty plea was not entered in a negotiated settlement like the one

presented here.

       The record in this case does not show that the probation revocation proceeding

was based on any conduct other than that alleged in case No. SCD240113. Accordingly

Tucker is entitled to additional credits in case No. SCD216068.

       Tucker argues we should remand the case to the trial court in light of our

conclusion he is entitled to more credits in case No. SCD216068. We decline to remand

the case at this point as the remand would be a futile act. Tucker has lawfully been

sentenced to concurrent terms and the additional credits in case No. SCD216068 will not

                                             11
impact the time he must serve in case No. SCD240113. (People v. Tuggles (2009) 179

Cal.App.4th 339, 388.)

                                      DISPOSITION

       The judgment in case No. SCD216068 is modified to reflect 868 additional

custody credits as against the sentence in that case. The trial court is ordered to modify

the judgment accordingly and to forward a revised abstract of judgment to the

Department of Corrections and Rehabilitation. In all other respects the judgment is

affirmed.


                                                                             HUFFMAN, J.

WE CONCUR:


              McCONNELL, P. J.


                  McDONALD, J.




                                             12
