Filed 3/25/15 P. v. Jimenez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040459
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS132048A)

             v.

JULIO JIMENEZ,

         Defendant and Appellant.



         Defendant Julio Jimenez appeals a judgment following his plea of no contest to
numerous domestic violence charges. On appeal defendant asserts the court erred in
ordering a probation condition requiring him to be employed or in school full-time,
because the condition is vague. In addition, defendant argues the court erred in awarding
him zero presentence custody credits for his felony case.
                                          STATEMENT OF THE CASE1
         In October 2013, a complaint was filed against defendant in case No. SS132048A.
The complaint alleged the following crimes: Corporal injury to a spouse or cohabitant
(Penal Code § 273.5, subd. (a)2; count 1); violation of a criminal protective order (§ 166,


         1
             The underlying facts are omitted because they are not relevant to the issues on
appeal.
         2
             All further statutory references are to the Penal Code.
subd. (c)(1); count 2); and child endangerment (§ 273a, subd. (b); count 3). As to count
1, the complaint further alleged, that defendant had a prior conviction under section 245,
subdivision (a)(1), within the preceding seven years. (§ 273.5, subd. (e).)
       At the time of the alleged offenses referenced above, defendant was on probation
in two misdemeanor cases: Monterey County Superior Court case Nos. MS301310A and
MS309897A.
       On October 23, 2013, defendant pled no contest to count 1 and admitted the
section 273.5, subdivision (e)(1), allegation in exchange for felony probation. Based on
that plea, the court found defendant to be in violation of probation in the two
misdemeanor cases.
       On December 6, 2013, in the felony case, No. SS132048A, the court suspended
imposition of sentence, imposed a three-year term of probation on condition that
defendant serve 150 days in jail, and awarded zero presentence credit. Counts 2 and 3
were dismissed.
       In misdemeanor case No. MS301310A, the court reinstated probation and ordered
that defendant serve 217 days in county jail with 217 days of presentence credits. In
misdemeanor case No. MS309897A, the court reinstated probation and ordered that
defendant serve 30 days in county jail with 21 days of presentence credits.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant asserts on appeal that the probation condition that he maintain
employment or enroll in school is unconstitutionally vague and overbroad. He also
argues the court erred in awarding him zero presentence credits in his felony case.
       Employment Probation Condition
       As a condition of probation, the court ordered that defendant “[m]aintain gainful
employment or become enrolled as an active full-time student.” Defendant argues this

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condition is vague, because it does not take into account lack of opportunity of
employment or education. He requests that the condition be modified to read, “seek and
maintain gainful employment, or become enrolled as an active full-time student as
available.”
        While defendant did not object to the condition when it was imposed by the trial
court, his argument on appeal is not waived. The forfeiture rule does not apply when a
probation condition is challenged as unconstitutionally vague or overbroad on its face and
the claim can be resolved on appeal as a pure question of law without reference to the
sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) We review the
question of whether the condition is unconstitutionally vague de novo. (Id. at pp. 885-
888.)
        “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re
Sheena K., supra, 40 Cal.4th at p. 890.)
        Here, defendant argues that the probation condition requiring that he maintain
employment should be modified to require that he “seek and maintain” such employment.
He asserts that the requirement that he maintain employment or become enrolled as a
full-time student is vague and overbroad because “it fails to account for lack of
opportunity.” Defendant argues that the way the condition is written, if defendant tries to
find a job and fails for lack of opportunity, he will be in violation of his probation. He
argues he should not be found in violation of probation for circumstances beyond his
control.
        Probation conditions must be given a “reasonable and practical construction.”
(See People v. Lopez (1998) 66 Cal.App.4th 615, 630.) Here, the condition that
defendant maintain employment is reasonably interpreted to include honest attempts to

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become employed. Defendant will likely not be found in violation of probation if he is
making reasonable attempts at employment under circumstances in which employment
opportunities are limited. Moreover, the condition is sufficiently clear for defendant to
know what is required of him. (See In re Sheena K., supra, 40 Cal.4th at p. 890.)
         We find that the employment condition in this case is neither vague nor overbroad.
         Custody Credits
         Defendant asserts the trial court erred in awarding him zero presentence custody
credits in his felony case. Specifically, defendant notes that in case No. SS132048A, he
spent 44 actual days in county jail prior to sentencing; however, when the court ordered
him to serve 150 days in county jail, it awarded him zero credits for time served.
Defendant asserts he is actually entitled to 88 days of presentence credit toward his 150
day term.
         Defendant was sentenced on the felony case, as well as the two misdemeanor
violations of probation during the same sentencing hearing. In the felony case that is the
subject of this appeal (No. SS132048A), the court granted probation with an order that
defendant serve 150 days in county jail with zero presentence credits. In misdemeanor
case No. MS301310A, the court reinstated probation and ordered that defendant serve
217 days in county jail with 217 presentence credits, based on 109 actual days in custody
plus 108 conduct credits. In misdemeanor case No. MS309897A, the court reinstated
probation and ordered that defendant serve 30 days in county jail with 21 presentence
credits, based on 11 actual days in custody plus 10 conduct credits, consecutive to all
other sentences.
         The underlying felony occurred while defendant was on probation in each of the
two misdemeanor cases. When defendant entered his no contest plea to the felony
charges, the court found defendant was in violation of probation in his two misdemeanor
cases.

                                              4
         Here, defendant and the Attorney General dispute whether the court ordered
defendant’s term on the felony to run consecutively to the misdemeanor probation
violation terms. During the sentencing hearing, after ordering the 150-day term for the
felony, the court stated: “Your sentence will be consecutive to your sentence in 310
[MS301310A] and 897 [MS309897A].”
         While the court’s oral pronouncement at the hearing clearly states that the felony
term was to run consecutive to the misdemeanor terms, some confusion occurred when
the court proceeded and began discussing custody credits with the probation officer. The
discussion appears to be related to whether the two misdemeanor terms of probation
would run concurrent to one another, and consecutive to the felony. The colloquy
between the court and the probation officer is as follows:
         “THE COURT: In the case ending in 310 [MS301310A], probation is
         reinstated on the original terms and conditions and following
         modifications. Ordered to serve—you’re ordered to serve 217
         days in the county jail, credit time served of 109 actual plus 108
         good time, for a total of 217 days consecutive to all the other
         sentences.
         “THE PROBATION OFFICER: Your Honor, that would be a concurrent sentence.
         “THE COURT: I’m sorry. Concurrent sentence. 310 [MS301310A] will
         be concurrent. 891[3] will be consecutive.
         “THE PROBATION OFFICER: Your Honor, if I may, if
         that is consecutive, the defendant’s credits need to be modified
         under the recommendation on page 21. If consecutive, the
         defendant has a total of 21 days consisting of 11 actual and


         3
             This appears to be an error, as there was no case with the last three numbers of
“891.”
                                                5
       10 conduct credits.
       “THE COURT: Thank you. Case ending in 987,[4] probation
       is reinstated on all original terms and conditions with the
       following modifications. [¶] You’re ordered to serve 30 days in
       the county jail, credit for time served 11 actual, plus 10 good
       time calculated at 50 percent for a total of 21 days.”
       While the colloquy above is ambiguous regarding whether the misdemeanor terms
were to run concurrently to each other, the discussion does not demonstrate that the court
changed the original consecutive order on the felony term. When the court imposed the
term of confinement of 150 days on the felony, the court clearly and unambiguously
stated: “Your sentence will be consecutive to your sentence in 310 [MS301310A] and
897 [MS309897A].” The minute order reflects the court’s order, stating clearly that the
felony term is to run consecutive to the misdemeanor terms. Despite the confusion
during the discussion between the court and the probation officer following the court’s
order on the felony term, there is no discrepancy between the oral pronouncement of
sentence on the felony and the minute order in this case. The court intended the felony
term to run consecutive to the misdemeanor terms.
       Because defendant’s felony term was ordered to run consecutive to the
misdemeanor terms, he is not entitled to dual credit for his presentence custody time.
Section 2900.5 governs the award of presentence custody credits. It provides: “(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 including days credited to
the period of confinement pursuant to Section 4019, . . . shall be credited upon his or her


       4
      The numbers appear to be transposed. The misdemeanor case number is
MS309897A. The court references this as “987,” when it should be “897.”
                                              6
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
once for a single period of custody attributable to multiple offenses for which a
consecutive sentence is imposed.”
       When consecutive terms are imposed for multiple offenses in a single proceeding,
as they were in this case, only one of the terms shall receive credit for presentence
custody. (See, e.g., People v. Cooksey (2002) 95 Cal.App.4th 1407, 1414-1415.) Here,
the period of presentence custody time in dispute is between October 10, 2013 and
November 22, 2013. Defendant asserts the total of 88 days, consisting of 44 days actual
time and 44 days of conduct credit, should be credited toward his 150-day felony term.
However, defendant received credit for most of this period toward his misdemeanor term.
In misdemeanor case No. MS301310A, the court ordered that defendant serve 217 days
in county jail with 217 presentence credits. This total included 109 actual days, of which
39 days were from the period between October 15, 2013 and November 22, 2013. As a
result, defendant is not entitled to credit for this period toward his felony term, because
this would be impermissible dual credit. (§ 2900.5, subd. (b).)
       However, there do appear to be five days during which defendant was in custody
on the felony between October 10, 2013 and October 15, 2013 that were not credited
toward the 217-day misdemeanor term in case No. MS301310A. Defendant is entitled to
presentence credit for the five days he was in custody on the felony, because that time
was not credited in any other case (In re Marquez (2003) 30 Cal.4th 14, 20; defendant
entitled to credit for “ ‘dead time’ ” in custody.) As a result, the court’s order of zero
days actual credit for defendant’s felony term was in error, and should be amended to

                                              7
reflect five actual days and five days of conduct credit for a total of 10 days presentence
credit.
                                          DISPOSITION
          The abstract of judgment is modified to reflect that defendant is entitled to 10 days
of presentence custody credit in case No SS132048A. As modified, the judgment is
affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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