Filed 4/9/14 P. v. Barrett CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058101

v.                                                                       (Super.Ct.No. FCH900307)

LANCE C. BARRETT,                                                        OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown,

Judge. Affirmed.

         James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen

Kinnaird Chenelia and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and

Respondent.



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       Defendant Lance Barrett is serving 15 years in prison for killing his prison

cellmate. He pled guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a))1 with a

deadly weapon enhancement (§ 12022, subd. (b)(1)), and assault by a prisoner (§ 4501.5),

with two prior prison terms (§ 667.5). Defendant argues that under the plea agreement he

should have received presentence custody credits from the date of the offense rather than

from the later date determined by the Probation Department in a credit memo. He asked

that either the credits be recalculated or he be allowed to withdraw his guilty plea. As

discussed below, the plea agreement did not, and could not lawfully have, specified the

date of the offense as the start date for presentence custody credits. This is because

defendant was in prison on another matter at the time of the offense. Therefore we affirm

the judgment.

                                  FACTS AND PROCEDURE

       The Offense—March 14, 2008

       On March 14, 2008, defendant was a prisoner at the California Institute for Men in

Chino. He was housed in a two-person cell with another inmate. At 8:50 p.m.,

correctional officers found the other inmate’s body on the floor of the shared cell. The

inmate had a towel twisted around his neck and a pool of blood under his head and neck.

Defendant was lying down on the lower bunk bed “in a relaxed manner with a grin on his

face.” As officers were removing defendant from the cell, he looked down at the body,

shook his head and said “Woo, woo, that sure is a lot of blood.” Defendant also

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


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commented something like “There comes a time in every man’s life when he must die.”

The cause of death was “strangulation with blunt head injuries.”

       The Information—June 12, 2009

       On June 12, 2009, the People filed an information charging defendant with

premeditated murder. (§187, subd. (a))

       The Amended Information, Plea Hearing and Sentencing—November 27, 2012

       On November 27, 2012, the People amended the information to include voluntary

manslaughter with the deadly weapon allegation, along with assault by a prisoner. The

information also newly alleged that defendant had two prior prison terms. At the plea

hearing on that date, the trial court first questioned defendant to determine whether he

understood the charges, the plea agreement, and the rights he would be giving up. The

trial court then discussed the indicated sentence with defendant: “My understanding you

are going to plead guilty to added Count 2, voluntary manslaughter. For that you’re

going to get the term—aggravated term, 11 years, and added Count 3, battery by a

prisoner, you’ll get one-third the midterm, you’ll get a year consecutive for each of your

prison priors, and another year for your [section] 12022[, subdivision] (b)(1), use of a

deadly weapon. So you’ll get 15 years, and as you know, you’ll get significant credits

that date back to the date of your offense. We’ll order a credit memo dated back to the

date of the offense, but that gives you kind of a ball park.”

       The court set a hearing for December 26, 2012, regarding credit for time served

and ordered the Probation Department to prepare a credit memo. The court then



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dismissed the murder count and defendant plead guilty to the newly charged offenses and

admitted the deadly weapon allegation and the two prior prison terms. As agreed, the

court sentenced defendant forthwith to 15 years as follows: The aggravated term of 11

years for the manslaughter, one year for the assault, and consecutive one-year terms for

the firearm enhancement and each of the two prison term priors.

       The Credit Memo Hearing—December 26, 2012

       The hearing on defendant’s pre-sentence custody credits was heard as scheduled

on December 26, 2012. The one-page credit memo prepared by the Probation

Department calculated 1247 days of actual presentence custody credit (for the time period

June 30, 20092 to November 27, 2012), plus 187 good conduct days under section

2933.1, for a total of 14343 days of credit. At the outset of the hearing, the trial court

stated “And I have a credit memo saying that as of—and it’s important that you put this

in the minutes—as of November 27, [2012], Mr. Barrett has 1247 actual, 187 conduct,

total of 1334 [sic]. And subject to you’re—any possible issues you may raise on appeal

concerning time that he may have spent in state prison prior to this being filed, do you go

ahead and submit on that . . . ?” Both the defense and the prosecution submitted. The

trial court advised defense counsel to let appellate counsel know to which courthouse that


       2 The information was filed on June 12, 2009. The date of the offense was March
14, 2008.

       3  The record transcript indicates a total of 1334 days presentence credits. The
clerk’s transcript shows the correct number of credits at 1434, as calculated in the credit
memo.


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judge was about to be transferred, so he could be quickly contacted to sign a certificate of

probable cause. A discussion then ensued as to the proper courthouse in which to file the

notice of appeal.

       This appeal followed. The trial court granted defendant’s request for a certificate

of probable cause.

                                        DISCUSSION

       Defendant contends the plea agreement entitled him to have his presentence

custody credits calculated from the date of the offense—March 14, 2008, rather than June

30, 2009. He asks for either specific performance or the opportunity to withdraw his

guilty plea. The People respond that, to the extent defendant did not forfeit this claim by

failing to raise it at the custody credit hearing, the plea agreement does not make an

award of custody credits beginning with the date of the offense a condition of his plea.

       As defendant explains, “A vague reference to ‘credit memo 12/26/12’ is the only

mention of custody credits on the guilty plea form that appellant signed.” This is true—

the plea agreement itself does not specify when defendant’s presentence custody credits

begin. Defendant bases his contention on the trial court’s oral description of the credits

he would receive under the plea agreement at the plea and sentencing hearing on

November 27, 2012: “So you’ll get 15 years, and as you know, you’ll get significant

credits that date back to the date of your offense. We’ll order a credit memo dated back

to the date of the offense, but that gives you a kind of ball park.” The prosecution did not

at that time object to this characterization of the credits defendant could expect.



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       Defendant replied “Yes, sir” to this statement from the trial court, as he then did to

the court’s advisals that he would serve 85 percent of his sentence, that he could suffer

immigration consequences if he were not a citizen, that he would serve three to four years

on parole, and that he could go back to prison for violating parole. Defendant replied

similarly to the court’s next questions as to whether his plea was free and voluntary, and

whether anyone threatened him or made other promises.

       The credit memo does not explain why defendant’s presentence custody credits

begin on June 30, 2009, rather than on the date of the offense—March 14, 2008.

Defendant argues the memo is not faithful to the plea agreement as explained by the court

at the plea hearing.

       The People first argue that defendant waived his right to appeal the presentence

credits calculation by failing to raise it in the trial court. We disagree. The trial court

was apparently aware that the calculation of presentence credits was an issue, as indicated

in its comments at the credit memo hearing regarding a certificate of probable cause,

where to file an appeal, and specific instructions to be related to the anticipated appellate

counsel.

       However, we do agree with the People that defendant has failed to demonstrate

that custody credits beginning with the date of the offense were a condition of his plea.

First and foremost, this was not set forth in the plea agreement at all. The plea agreement

merely referenced a “credit memo 12/26/12.”




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       Second, although the trial court stated in its indicated sentence that presentence

custody credits would begin “back to the date of the offense,” at the very end of plea

hearing the trial court clarified that the actual presentence custody credits awarded to

defendant would be determined by a credit memo from the Probation Department: “The

total time is 15 years in California State Prison with credits to be determined by a credit

for time served memo I’m ordering from probation. We’ll be come back on that, and the

defendant will be brought to court on that, for the credit for time served memo on the

26th of December.

       Third, as the People point out, calculation of presentence custody credits is

governed by statute. It is a simple matter of mathematics, rather than a matter upon

which a trial court, or the People in negotiating a plea agreement, can exercise discretion.

(People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139. In other words, neither the People

nor the trial court had the authority to promise defendant that his presentence custody

credits would begin on the date of the offense if he was at that time incarcerated on

another matter. It appears from the record that defendant was indeed incarcerated on

another matter—the offense took place while defendant was in prison. Allowing

defendant’s presentence custody credits to be calculated beginning with the date of the

offense would have resulted in an unauthorized sentence under both statute and case law.

“A defendant is not entitled to presentence custody credits when he or she is charged with

a crime while already incarcerated and serving a sentence on a separate, earlier crime.

[Citations.] The test is whether the defendant would have been free ‘but for’ his or her



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incarceration on the second crime.” (People v. Gisbert (2012) 205 Cal.App.4th 277, 281;

See also § 2900.5, subd. (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.”].) Thus, defendant has not established the

calculation of presentence custody credits beginning with the date of the offense was a

condition of his plea agreement.

       Finally, defendant argues that the trial court at the credit memo hearing should

have afforded him the opportunity to withdraw his guilty plea because the court deviated

from the agreed-upon sentence when it implemented the credit memo instead of insisting

he be given presentence custody credits back to the date of the offense. As discussed

above, defendant has not carried his burden to establish that this was part of the plea

agreement, as in fact it was not. Therefore, the court was under no obligation to allow

defendant to withdraw his plea.
                                           DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                       RAMIREZ
                                                                                          P. J.


We concur:

RICHLI
                          J.

KING
                          J.


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