Filed 5/6/15 P. v. Deremer CA1/5
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A143483
v.
                                                                     (Humboldt County
NICKOLAS E. DEREMER,                                                 Super. Ct. Nos. CR1200283,
         Defendant and Appellant.                                    CR1201996A, CR1401786)



         Nickolas Deremer entered pleas of guilty to drug offenses in three separate cases.
He appeals from sentences imposed after conviction on the most recent offense and his
admission that mandatory supervision terms were violated on the two earlier offenses.
Assigned counsel submitted a Wende1 brief, certifying that counsel was unable to identify
any issues for appellate review. Counsel also submitted a declaration confirming that
Deremer was advised of his right to personally file a supplemental brief raising any
points which he wishes to call to the court’s attention. Deremer did not submit such a
brief. As required, we have independently reviewed the record. (People v. Kelly (2006)
40 Cal.4th 106, 109–110.) We found apparent sentencing error, including calculation of
custodial credits, and requested briefing from the parties. We remand for recalculation of
custodial credits and correction of the abstract of judgment to reflect appropriate credits.



         1
             People v. Wende (1979) 25 Cal.3d 436.


                                                             1
                                      BACKGROUND
       Deremer did not obtain a certificate of probable cause (Pen. Code, § 1237.5;
Cal. Rules of Court, rule 8.304(b)), and no cognizable issues are before us relating to his
guilt or to his pleas. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099; People v.
Panizzon (1996) 13 Cal.4th 68, 74.) His appeal is only from his “sentence or other
matters occurring after the plea.” Facts underlying his three offenses are therefore
irrelevant, and we limit our discussion to the procedural history.
       In case No. CR1200283, Deremer entered a guilty plea to one felony count of
possession of a controlled substance (Health & Saf. Code, § 11350).2 On April 18, 2012,
imposition of sentence was suspended, and Deremer was placed on Proposition 36
probation for a term of three years, with a condition of 181 days in the county jail. He
received sentence credits for 91 days of actual custody, and 90 days of conduct credits.
As far as the record shows, no appeal was taken. On May 17, 2012, Deremer entered a
guilty plea to a new felony charge of possession of a controlled substance (§ 11350) in
case No. CR1201996A. He admitted violating probation in case No. CR1200283. On
August 6, 2012, he was placed on Proposition 36 probation in case No. CR1201996A for
a term of three years, with imposition of sentence suspended.
       On December 7, 2012, Deremer admitted violating his probation in both matters,
and probation was reinstated on each. On May 6, 2013, he again admitted probation
violations in each case, resulting in revocation and termination of probation. Sentence
was imposed on both cases. In case No. CR1200283, the court imposed the upper term
of three years in county jail (Pen. Code, § 1170, subd. (h)), with one year suspended. A
suspended consecutive sentence of eight months (one-third of the midterm) was imposed
in case No. CR1201996A. Deremer’s resulting custodial term was two years in county
jail, with an additional term of one year and eight months on mandatory community
supervision following his release. He received credit for 172 days of actual custody and
172 days conduct credits. Deremer was released on mandatory supervision on

       2
           Undesignated statutory references are to the Health and Safety Code.


                                              2
December 9, 2013. On April 16, 2014, a petition was filed to revoke mandatory
supervision and alleged that Deremer admitted using heroin, failed to report to the
probation department, and had been arrested on new charges.
       On April 22, 2014, Deremer entered a guilty plea in case No. CR1401786 to one
felony count of possession of a controlled substance for sale (§ 11351). He also admitted
violations of his mandatory supervision conditions in his two prior cases. Pursuant to the
terms of his plea agreement, Deremer was sentenced to the midterm of three years on his
new offense, and concurrent two-year terms on each of the earlier cases. Fines, fees and
credits were determined, and imposed without objection.
       The abstract of judgment mistakenly committed Deremer to the Department of
Corrections and Rehabilitation, and he was returned as ineligible.3 On return, Deremer
asked that he be given a “terminal sentence,” i.e., an entirely custodial sentence without
postrelease community supervision (PRCS).4 On October 16, 2014, the court remanded
Deremer to the county jail to serve his sentence.
       On October 24, 2014, the matters were returned to the court’s calendar for
clarification of sentencing, including appropriate custody credits. The court confirmed
the sentences previously imposed: a midterm of three years on the section 11351 offense
in case No. CR1401786, and concurrent midterm sentences of two years on the § 11350
offenses in case Nos. CR1200283 and CR1201996A. The court calculated Deremer’s
accrued custodial credits to be a total of 489 days as of October 16, 2014—186 actual
days, 186 days conduct credit, and 117 days credit under mandatory supervision. The
court confirmed that Deremer’s sentence was not “split” and involved no postrelease
       3
          Pursuant to the Criminal Justice Realignment Act of 2011 (Stats. 2011, 1st
Ex. Sess. 2011–2012, ch. 12, § 1; Pen. Code, § 1170, subd. (h)), low-level felony
offenders (no current or prior convictions for serious, violent or other specified offenses)
are to serve their sentences in county jail or under a so-called “split” sentence in which
part is served in county jail and part is served under county probation supervision. (Pen.
Code, §§ 17.5, subd. (a)(5), 1170, subd. (h)(1)–(3), (5).)
       4
        Deremer was advised at the time of his plea that he would be subject to a three-
year period of PRCS. Mandatory PRCS applies only to terms served in state prison. (See
Pen. Code, § 3451.)


                                             3
supervision. The court did not differentiate the offenses to which credits applied. A new
abstract of judgment, however, simply restated the custody credits set forth in the
April 24, 2014 abstract of judgment: total custodial credits of 270 days on the section
11350 offenses, and 18 days on the section 11351 offense. A timely notice of appeal was
filed on October 20, 2014.
       On February 6, 2015, pursuant to Proposition 47,5 the court resentenced Deremer
on the section 11350 offenses in case Nos. CR1200283 and CR1201996A, reducing the
offenses to misdemeanors and deeming those sentences served.6 The court declined to
resentence Deremer in case No. CR1401786.
                                      DISCUSSION
       As an initial matter, clearly no arguable issues exist as to sentencing in case
Nos. CR1200283 and CR1201996A. Any possible issues were rendered moot by the
February 6, 2015 resentencing and Deremer’s completion of those terms. As to his
remaining felony matter, the custodial term was set by the terms of his plea agreement,
and Deremer may not challenge a negotiated sentence imposed as part of a plea bargain
without first seeking and obtaining a probable cause certificate to attack the plea
agreement itself. (See People v. Panizzon, supra, 13 Cal.4th at p. 79.) The court
correctly imposed fines, fees, and penalties without objection. The only question is
whether Deremer received proper custodial credits on case No. CR1401786. It appears



       5
         Proposition 47, the voter-enacted Safe Neighborhoods and Schools Act, became
effective as November 5, 2014 (Cal. Const., art. II, § 10, subd. (a)). Among other things,
Proposition 47 classified certain drug- and theft-related offenses as misdemeanors that
had been previously felonies or “wobblers,” unless committed by certain ineligible
defendants. Proposition 47 also created a new resentencing provision regarding persons
serving felony sentences for a reclassified offense; such persons may petition for recall of
their sentence and request resentencing. (Pen. Code, § 1170.18, subd. (a).)
       6
        We grant Deremer’s March 24, 2015 request to take judicial notice of the
February 6, 2015 clerk’s minutes of this hearing. (Evid. Code, § 452, subd. (d) [judicial
notice may be taken of “[r]ecords of . . . any court of this state”].) The records are
relevant to our determination of whether any arguable issues are presented for review.


                                              4
that either under the court’s October 24, 2014 colloquy, or under the abstract of judgment
prepared on that date, he did not.7
       Deremer was arrested on April 14, 2014. As of April 22, the time his sentence
was first imposed, Deremer had total custodial credit of 18 days attributable to case
No. CR1401786 (nine days actual, nine days conduct), as articulated in the court’s
colloquy and reflected in the abstract of judgment. Deremer made no objection to this
calculation. (See Pen. Code, § 1237.1.)8 Calculated as of October 16, 2014, he had
additional actual custody time of 186 days, and presumably had equal conduct credit of
186 days (Pen. Code, § 4019), totaling 372 days. The court also appears from the
colloquy to have awarded an additional 117 days custodial credit for his period of
mandatory supervision. That credit was properly attributable to case Nos. CR1200283
and CR1201996A, but had no relation to case No. CR1401786.
       Penal Code section 2900.5 governs the award of presentence custody credits:
“(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the
defendant has been in custody, . . . all days of custody of the defendant, including days
served as a condition of probation in compliance with a court order, [and days] credited
to the period of confinement pursuant to Section 4019, . . . shall be credited upon his or
her term of imprisonment . . . . If the total number of days in custody exceeds the number
of days of the term of imprisonment to be imposed, the entire term of imprisonment shall
be deemed to have been served. . . . [¶] (b) For the purposes of this section, credit shall be
given only where the custody to be credited is attributable to proceedings related to the
same conduct for which the defendant has been convicted. Credit shall be given only


       7
        On April 15, 2015, we requested briefing from the parties as to calculation of
Deremer’s custodial credits and the appropriate remedy when both the court’s colloquy
and abstract of judgment appear erroneous.
       8
          “No appeal shall be taken by the defendant from a judgment of conviction on the
ground of an error in the calculation of presentence custody credits, unless the defendant
first presents the claim in the trial court at the time of sentencing, or if the error is not
discovered until after sentencing, the defendant first makes a motion for correction of the
record in the trial court.” (Pen. Code, § 1237.1.)


                                              5
once for a single period of custody attributable to multiple offenses for which a
consecutive sentence is imposed.” As our Supreme Court has noted, however, “ ‘in what
is surely an understatement, “[c]redit determination is not a simple matter.” ’ [Citation.]”
(In re Marquez (2003) 30 Cal.4th 14, 19.) Application of section 2900.5 “ ‘is clear when
the conduct that led to the conviction and sentence was the sole cause of the custody to be
credited. But difficult problems arise when, as often happens, the custody for which
credit is sought had multiple, unrelated causes.’ [Citation.]” (People v. Gonzalez (2006)
138 Cal.App.4th 246, 252.)
       In response to our briefing request, the People argue that Deremer is entitled to
390 days custodial credit (372 days as to all cases, plus 18 days accrued earlier in case
No. CR 1401786),9 and ask us to order amendment of the abstract of judgment without
remand. However, our own calculation of credits in our briefing request (in which we
assumed the trial court’s award of a total of 372 days credit as of Oct. 16, 2014, was
correct) already included the 18 days of presentence credit. Deremer contends that the
amount of days actually credited to case No. CR 1401786 “remains unclear,” and
suggests remand to the trial court for correction of applicable credits and issuance of an
amended abstract of judgment.
       We had hoped that the parties’ briefing would provide agreement on what should
be a straightforward question, allowing expeditious resolution of a matter that has already
unnecessarily consumed undue judicial resources. Unfortunately, it has not. Although
we could conduct our own recalculation, we reluctantly conclude that we are required to
remand to the trial court for resolution of a matter which may be moot by the time the
trial court again considers it. “The sentencing court is responsible for calculating the
number of days the defendant has been in custody before sentencing and for reflecting the
total credits allowed on the abstract of judgment.” (People v. Black (2009)
176 Cal.App.4th 145, 154.)

       9
         The People also suggest that Deremer may have served his sentence, in which
case the issue would be moot. Absent evidence to the contrary, we presume that the issue
is not moot.


                                             6
                                    DISPOSITION
      The matter is remanded to permit the trial court to determine and award proper
custodial credits pursuant to Penal Code sections 2900.5 and 4019, and to correct the
abstract of judgment accordingly.




                                            7
                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.




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