IRION, J.
Howard Jerome Edwards appeals from the judgment entered after resentencing on remand pursuant to this court's opinion in People v. Foster (Dec. 19, 2012, D060669) [nonpub. opn.] (Foster II). Specifically, Edwards asserts: (1) the trial court erred in ordering restitution under Penal Code section 1202.4;
This is the third appeal following Edwards's conviction on multiple counts of grand theft of personal property, conspiracy to commit grand theft, multiple counts of forgery, identity theft, and offering a forged instrument for filing. In the first appeal, we reversed the convictions on four counts based on instructional error and remanded with directions that the trial court determine presentence credits under former section 4019 and the abstract of judgment be corrected in certain respects. (Foster I, supra, D056830.) In the second appeal, we reversed the sentencing order (on the basis the trial court had prejudicially denied Edwards's request to continue the sentencing hearing in order for him to retain private counsel) and remanded with instructions that the matter be set for a new sentencing hearing and the abstract of judgment again be corrected. (Foster II, supra, D060669.)
Following the remand in Foster II, supra, D060669, the court conducted a sentencing hearing at which Edwards received a lengthy prison term, and the court imposed various statutory fees and fines and awarded restitution and certain credits. Edwards timely appealed from the trial court's judgment in the remanded proceedings. As introduced ante, Edwards raises specific contentions regarding restitution, presentence custody credits and the need for corrections to the abstract of judgment. We will address his arguments in turn, after setting forth additional facts relevant to each issue.
In three separate series of transactions, Edwards and his codefendant borrowed large sums of money in other people's names in order to buy and sell real estate and automobiles. (Foster I, supra, D056830.) Following the remand in Foster I, as relevant to the issue of restitution, the court ordered Edwards to pay $560,000 to Countrywide Home Loans and $675,000 to LandSafe Title Company. (§ 1202.4.) After the reversal of the judgment following sentencing and the remand in Foster II, supra, D060669, the court held a series of hearings in July 2013 related to the required resentencing.
At the July 10, 2013 hearing, Edwards's attorney asked the court to reconsider the amount of restitution previously ordered on the basis that certain real property involved in one of the three series of transactions had been sold and significant funds had been paid by the new buyer, arguably resulting in less financial loss for the victim and an offset to the previously ordered restitution. The court ruled that because no evidence had been presented (merely argument of counsel), the court would "reserve jurisdiction over the issue of victim restitution under . . . section 1202.46,"
The People's sentencing memorandum discussed only the requested issue. Edwards's sentencing memorandum discussed the requested issue and briefly mentioned restitution.
The sentencing hearing proceeded on July 26, 2013. As an introduction to the issue of restitution, the court stated: "There were previous estimates of the l[oss] submitted by the victims in the appeals, the two appeals, that have been heard. There's been no challenge to that particular part of Mr. Edwards' sentencing." The court and both counsel then discussed the exhibits attached to Edwards's sentencing memorandum. In particular, the court identified certain problems: (1) the exhibits were not authenticated; and (2) one of them, entitled in part "Ownership History Report" (some capitalization omitted), contained only a parcel number with no street address. After hearing from both attorneys, the court explained that Edwards's evidentiary presentation was lacking — to which Edwards's attorney suggested, "[W]ell, then what I think we should do . . . is if the court is not clear where the money went, and . . . where the money is, then we should separate this and actually have a restitution hearing on this issue." The prosecutor agreed, and the court stated: "I think that's probably right, and I'm willing to do that. And there's continuing jurisdiction over restitution issues anyway, so that's something we could always revisit." Based on the People's offer of proof at an earlier hearing, the court also invited the People to present their evidence of the additional restitution the People would be seeking.
Although Edwards's attorney understood that the court had ordered "no restitution at this point," the court promptly corrected his misunderstanding, stating: "I have no reason to question the restitution that's previously been ordered." Based on the evidence that had been presented at the original sentencing hearing — specifically, according to the court, the "prima facie evidence of th[e victims'] loss" — the court ordered the same restitution as at the original sentencing hearing.
On appeal, Edwards contends the award of restitution should be reversed, because (1) he was denied a full and fair hearing, since the court did not allow him to dispute the determination of the amount of restitution, or alternatively, (2) by proceeding with the hearing while acknowledging the need to take additional evidence of a potential offset, the restitution order was arbitrary and capricious. The facts and the contentions in support of both arguments are essentially the same.
The People misunderstand Edwards's position. Believing that Edwards is challenging the court's failure to conduct the new restitution hearing (at which Edwards could present evidence of his alleged offset and the People could present their evidence of additional losses by the victims), the People argue that by noticing this appeal prior to the hearing, Edwards divested the court of jurisdiction to conduct the new restitution hearing.
We review the trial court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) Thus, we must determine whether the restitution ordered here "`"falls outside the bounds of reason" under the applicable law and the relevant facts.'" (Ibid.)
The People have the initial burden of presenting a prima facie case for restitution. (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) The People presented their prima facie case at the initial sentencing hearing in September 2011 following Edwards's conviction. At the July 26, 2013 sentencing hearing, the court based its restitution order on the "prima facie evidence of [the victims'] loss" that the People presented at the original (Sept. 2011) sentencing hearing. Although that evidence is not in the record on appeal,
The court's "acknowledg[ment] that circumstances had changed" was based entirely and exclusively on Edwards's and the People's arguments (which at best might be considered offers of proof) related to what each of them anticipated proving at a future restitution hearing. Following these arguments, the trial court agreed to hold a further hearing at which evidence could be presented.
What Edwards characterizes as the "prosecutor['s] implicit[] acknowledge[ment] that he was unable to make a prima facie showing of economic loss" related only to evidence obtained after the original restitution order — evidence of additional losses suffered by the victims for which the People would be seeking additional restitution. Edwards has not challenged the prima facie showing of economic loss that was presented at the September 2011 sentencing hearing on which the current restitution order is based.
Finally, the "anticipation of a future restitution hearing that was never held" does not suggest the court abused its discretion in awarding the restitution at issue. The fact that such a hearing may not have taken place yet is irrelevant to the issues Edwards raises in this appeal — issues that are being decided based on the evidence and argument of counsel properly before the court at the time of the ruling. Indeed, the fact that the court retained jurisdiction to conduct such a future restitution hearing (see § 1202.46) indicates that Edwards has not been prejudiced by the restitution ruling he challenges here.
Because the trial court did not abuse its discretion in awarding restitution, that part of the judgment is affirmed.
Edwards was first taken into custody on September 22, 2008, in Locust Grove, Georgia, based on an arrest warrant issued in San Bernardino County, California. San Bernardino County agents picked up Edwards in Georgia on September 24, 2008, returned him to California and booked him into local custody on September 25, 2008. Edwards was incarcerated again on January 28, 2009, where the parties agree he remained in local custody through the date of the initial sentencing hearing on July 31, 2009. Finally, Edwards was incarcerated during the period from July 31, 2009 (the date of the original sentencing hearing), through July 26, 2013 (the date of the sentencing hearing that preceded the judgment from which this appeal was taken).
A defendant like Edwards who is sentenced to state prison is entitled to credit against the term of imprisonment for all days in custody prior to the sentencing (former § 2900.5, subd. (a)
The abstract of judgment indicates that Edwards is entitled to 1,848 total days of custody credit — 1,718 days of actual credit and 130 days of conduct credit. The trial court's calculation of presentence credits indicates Edwards did not begin receiving credits until the date of his booking in California on September 25, 2008. Arguing that he is entitled to credit as of the date of his arrest in Georgia on September 22, 2008, Edwards asks that we modify the judgment to reflect an additional three days to the actual credits (former § 2900.5) and an additional two days to the conduct credits (former § 4019) previously awarded.
Although the People's brief opposes Edwards's requests, the day before oral argument the Attorney General conceded the validity of the three additional days of actual credits pursuant to In re Watson (1977) 19 Cal.3d 646, 651-652. We agree, accept the concession, reverse that portion of the judgment dealing with the actual credits, and remand with instructions that the court recalculate the former section 2900.5 actual credits to include an additional three days (Sept. 22, 23 and 24, 2008).
The People continue to oppose Edwards's request for an additional two days of conduct credits. The two days of custody at issue are September 22 and 23, 2008, during which time Edwards was in the exclusive custody and control of the Georgia authorities. According to the People, former section 4019 was intended as an incentive to a prisoner to cooperate and behave well only once the prisoner was detained in California or by a California custodian. In this case, the People emphasize, Edwards was not under the control of a California custodian until September 24, when the San Bernardino County agents picked up Edwards in Georgia. We disagree with the limitation the People read into former section 4019.
"The failure to award an adequate amount of credits is a jurisdictional error which may be raised at any time." (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [actual credits and conduct credits].) We will apply the de novo standard of review, because our analysis requires interpretation and application of a statute to undisputed facts. (People v. Salcido (2008) 166 Cal.App.4th 1303, 1311.)
"`We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context. . . .'" (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) Importantly, "[t]he plain meaning controls if there is no ambiguity in the statutory language." (Ibid.)
For purposes of determining conduct credits, the benefits provided in former section 4019, subdivisions (b) and (c) apply to "all days of custody from the date of arrest to the date on which the serving of the sentence commences." (Former § 4019, subd. (a)(1), italics added; see People v. Bravo (1990) 219 Cal.App.3d 729, 735 ["Conduct credits shall be computed on the full period of custody commencing with the day of arrest." (Italics added.)].)
Relying on an entry in the probation report that was prepared in support of the original sentencing (which we reversed in Foster I, supra, D056830), the People suggest Edwards was arrested on September 25, 2008. We do not read the report as definitively as do the People. Rather, the dates under the heading "Arrest Date" in the probation report correspond only to the dates of Edwards's bookings in California.
In April 2008, the trial court issued an arrest warrant for Edwards, which an investigator from the prosecutor's office entered into "the [National Crime Information Center] system, which goes nationwide." A detective from the Henry County Police Department in McDonough, Georgia, took Edwards into custody based on the California arrest warrant. The Georgia detective then contacted the California prosecutor's investigator "on September 22nd, 2008," and advised the investigator that the Georgia detective and his agency "had arrested [Edwards]." (Italics added.) Consistently, at trial the Georgia detective acknowledged he had "apprehended Mr. Edwards." On September 24, 2008, the California prosecutor's investigator and his partner flew to Georgia and met with the detective (and conducted further investigation), ultimately returning with Edwards to California, where Edwards was booked into local custody on September 25, 2008.
Based on the foregoing, for purposes of former section 4019 conduct credits, Edwards was under arrest and in custody in Georgia as of September 22, 2008, and he was under arrest and in custody in California on September 25, 2008. Thus, because there is no indication that Edwards's entire custody was not lawfully authorized — and the People do not contend otherwise — he was under "arrest" as that term is defined in section 834 commencing September 22, 2008.
People v. Buckhalter (2001) 26 Cal.4th 20 teaches that former section 4019 conduct credit "focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Buckhalter, at p. 36.) From this, the People present two arguments. In their brief, the People argue that former section 4019 encouraged such cooperation and behavior only for the benefit of California custodians — emphasizing that, during the two days at issue in this appeal, Edwards was in the exclusive custody of the state of Georgia. At oral argument, the People contended that, since the purpose of the statute was to reward a detained person's behavior, "how can an actor change his behavior if he doesn't even know of the promised reward?" — implying that, by being in Georgia, Edwards could not have known about former section 4019 and, thus, is not entitled to its benefits. Based on the statutory language, however, neither argument is persuasive. The language of former section 4019 requires only that the prisoner be "confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp." (Id., subd. (a)(1).) The statute neither states nor implies whom the custodian must be or whether the prisoner must be aware of this benefit in order to receive it; and we will not infer any such requirements. The crucial element is "encouraging minimal cooperation and good behavior" while in local custody (Buchalter, at p. 36), not where or under whose control the prisoner is in local custody.
Accordingly, for purposes of calculating the presentence conduct credits under former section 4019, the trial court erred in not including in the calculation the two days Edwards was under arrest and in custody in Georgia before the San Bernardino County agents picked him up. We reverse that portion of the judgment and remand with instructions that the court recalculate the former section 4019 conduct credits to include an additional two days (Sept. 22 and 23, 2008).
In Foster II, we ordered the abstract of judgment to be corrected as follows:
Edwards argues that the current abstract of judgment (following the July 26, 2013, sentencing hearing) does not reflect the corrections we previously ordered. Additionally, Edwards asks that the abstract be further corrected as follows as to each offense: (a) the "Date of Conviction" is shown as "07-26-13," whereas Edwards was convicted on June 5, 2009; and (b) Edwards is shown as having been convicted following a court trial, whereas he was convicted following a jury trial. The People concede that all of these clerical errors — the seven ordered in Foster II, supra, D060669, and the two identified in this paragraph — should be corrected.
We independently have reviewed the record and agree that the abstract of judgment should be amended. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1076 [appellate court has inherent power to correct clerical errors and to order the abstract of judgment amended].) However, our review also discloses that Edwards was convicted on June 8, 2009 — not June 5, 2009, as originally suggested by Edwards and originally conceded by the People.
Those portions of the judgment in which the superior court awarded actual credits under former section 2900.5 and conduct credits under section 4019 (see fn. 15, ante) are reversed, and the court is ordered to recalculate Edwards's former section 2900.5 credits and former section 4019 credits consistent with this opinion and to amend the abstract of judgment accordingly. In all other respects the judgment is affirmed.
The superior court is further ordered to correct the abstract of judgment to reflect: (1) counts 7-13, 16 and 18 occurred in 2006; (2) counts 15, 28-45 and 48 occurred in 2007; (3) counts 46 and 47 occurred in 2008; (4) the "$50" court security fee is composed of a $20 fee under section 1465.8, and a $30 court facilities assessment fee under Government Code section 70373; (5) the sentence was imposed on September 20, 2011; (6) the "Date of Conviction" of each count is June 8, 2009; and (7) Edwards was convicted following a jury trial.
After the abstract of judgment is amended and corrected, the superior court is ordered to forward a copy to the Department of Corrections.
BENKE, Acting P. J. and HUFFMAN, J., concurs.
