THE PEOPLE v. RUBEN ODELL BOULWARE

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RUBEN ODELL BOULWARE, Defendant and Appellant.

B223738

Decided: June 22, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Ruben Odell Boulware appeals from a post-judgment order modifying custody credits.   His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, stating that he found no arguable issues.   After appellant was notified, he submitted a supplemental brief making the following assignments of error:  (1) the modification was invalid, because it was done after the jurisdictional time to recall his sentence had lapsed;  (2) the trial court abused its discretion by failing to state whether the modification was made necessary by judicial error or clerical error;  (3) the reduction in custody credits was error, and amounted to double jeopardy.

We find that the court had jurisdiction to modify the credits, did not err in doing so, and was not required to declare the modification to be a correction of judicial or clerical error.   In addition, we conclude that the modification did not subject appellant to double jeopardy.   Further, having reviewed the entire record, and finding no other arguable issues, we affirm the order.

BACKGROUND

In 2004, we affirmed appellant's conviction of two counts of worker's compensation insurance fraud (counts 1 and 2) and one count of insurance fraud (count 4).  (See People v. Ruben Odell Boulware (Oct. 26, 2004, B171283 [nonpub. opn.].) 1 The California Supreme Court denied review, and denied appellant's two petitions for writ of habeas corpus.   Appellant then filed a successful petition for habeas corpus in the United States District Court for the Central District of California.   That court found reversible instructional error, and ordered that appellant be retried on counts 1 and 2, or discharged from his convictions on those counts.

A new trial was scheduled for counts 1 and 2, and at some point, appellant was returned to local custody.2  When the People were unable to proceed, the trial court dismissed counts 1 and 2.3 On May 2, 2007, the court resentenced appellant on count 4, selecting the upper term of five years, which it doubled due to a prior “strike” under the “Three Strikes” law (Pen.Code, §§ 667, subds.(b)-(i);  1170.12),4 for a total of 10 years.   The court awarded 2,344 days of custody credit, consisting of 1,580 days actual local time and 764 local conduct credits.   Appellant again appealed, and we affirmed.  (See People v. Ruben Odell Boulware (April 10, 2008, B199914 [nonpub. opn.].)

On August 26, 2009, the Department of Corrections and Rehabilitation (Department or Department of Corrections) informed the trial court that the court's calculation of custody credits was in error, in that it had awarded local conduct credits based upon time spent in custody prior to resentencing.5  The Department requested the court to issue a modified abstract of judgment, showing the actual time, without computation of conduct credits, for all time spent in custody after the original commitment in 2003.   When the Department received no reply from the court, it made a second request on March 10, 2010.   The next day, the court ordered the modification of the custody credits, as follows:  “1. As of the sentencing date 11/10/03[,] 308 actual plus 154 good time/work time = 462[¶] 2. From 11/10/03 to 5/2/07 = 1269 actual (prison credits) credits to be calculated by the Department of Corrections and Rehabilitation pursuant to People v. Honea [1997] 57 Cal.App.4th 842.” 6

The abstract was amended accordingly, and appellant filed a timely notice of appeal from the court's order.7

DISCUSSION

Appellant contends that 120 days after May 2, 2007, when he was resentenced on count 4, the trial court lost jurisdiction to modify the judgment.   He invokes section 1170, subdivision (d), which provides that once a defendant has begun his state prison sentence, the court may recall the sentence within 120 days to resentence him, so long as the new sentence is no greater than the initial sentence, and credit is given for time served.   He further contends that because only clerical error, not judicial error, may be corrected beyond the jurisdictional time limit, the trial court was required to specify which type of error justified the modification on March 11, 2010.

The trial court did not recall the sentence under section 1170, subdivision (d).  Instead, it amended the abstract in order to correct an unauthorized grant of local conduct credit.   There is no jurisdictional time limit to correct an unauthorized sentence.  (See People v. Karaman (1992) 4 Cal.4th 335, 349, fn.15 (Karaman ).)   An unauthorized grant of custody credit is void, whether it was due to judicial error or clerical error, and may be corrected whenever the error comes to the court's attention.  (Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818-819, cited with approval in Karaman, supra, at p. 349, fn.15.) Thus, the trial court was not required to specify what kind of error it was correcting, nor had it lost jurisdiction to correct the sentence on the ground that the credits were unauthorized by law.

Appellant contends that on May 2, 2007, the trial court correctly awarded presentence custody credits, and thus, that it imposed a lawful, authorized sentence, not subject to correction at any time.   We disagree.

Section 4019 provides for good behavior credits during the time that a defendant “is confined in a county jail ․ following arrest and prior to the imposition of sentence for a felony conviction.” (§ 4019, subd. (a)(4).)   After the original sentencing, when a defendant is temporarily confined in a local facility for resentencing, he remains in the constructive custody of the Department of Corrections, serving his term under the original commitment.   (In re Martinez (2003) 30 Cal.4th 29, 31 (Martinez );  People v. Buckhalter (2001) 26 Cal.4th 20, 27-30 (Buckhalter );  see § 2901.)   Thus, “any credits beyond actual custody time may be earned, if at all, only under the so-called worktime system separately applicable to convicted felons serving their sentences in prison.  [Citations.]”  (Buckhalter, supra, at p. 23;  § 2930 et seq.)   Presentence good conduct credits under Penal Code section 4019 may not be earned by a defendant who is in the constructive custody of the Department of Corrections.  (Buckhalter, supra, at p. 31.)

Appellant points out that his circumstances are distinguishable from those in Martinez and Buckhalter.   In Buckhalter, the defendant was returned to local custody after the appellate court remanded solely on sentencing issues;  his conviction was not vacated.  (See Buckhalter, supra, 26 Cal.4th at p. 22.)   In Martinez, the defendant was convicted of two counts, both were reversed, and upon remand, one count was dismissed.   She pled guilty to the remaining count, and was correctly given presentence local custody credit from the time of reversal until her second sentencing (denominated “phase III”).  (See Martinez, supra, 30 Cal.4th at p. 31.)

Appellant contends that his case is analogous to Martinez, because two counts were reversed and dismissed in his case.   He argues that because count 4 had originally been the subordinate term, he was still serving his terms on counts 1 and 2 prior to reversal.   Thus, appellant reasons, he could not yet be deemed to be in the custody of the Department of Corrections on count 4 until he was resentenced on May 2, 2007.   We disagree, and find his circumstances more analogous to those in Buckhalter.   Appellant was convicted of count 4, sentenced on November 10, 2003, and delivered into the custody of the Department of Corrections.   Once appellant was committed to the Department of Corrections to begin his prison term, he remained “imprisoned until duly released according to law.” (§ 2901.)   Appellant was never released according to law on count 4, which was not reversed, and thus, he was not restored to presentence status for purposes of applying custody credit.  (See Buckhalter, supra, 26 Cal.4th at p. 23.)

Appellant also contends that the trial court's resentencing of May 2, 2007, and the modification of credits on March 11, 2010, resulted in a violation of the double jeopardy clauses of the United States and California Constitutions.  (See U.S. Const., 5th & 14th Amends.;   Cal. Const., art.   I, § 15.)   Appellant previously appealed the judgment entered May 2, 2007, and we rejected the same double jeopardy claim in that proceeding.  (See People v. Ruben Odell Boulware, B199914, supra.)   As appellant does not contend that there has been an intervening change in the law since that appeal became final, our resolution of that issue against appellant is law of the case, and appellant may not relitigate it.  (See People v. Laursen (1972) 8 Cal.3d 192, 204-205.)   Further, because the trial court merely corrected an unauthorized and invalid grant of custody credits, the modification of the sentence on March 11, 2010, did not result in a double jeopardy violation.   (See Karaman, supra, 4 Cal.4th at p. 349 & fn. 15.)

We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no other arguable issues exist.  (People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FOOTNOTES

FOOTNOTE.  

FN1. Concurrently with the appeal, we considered and denied appellant's petition for writ of habeas corpus, In re Ruben Odell Boulware, case No. B174108..  FN1. Concurrently with the appeal, we considered and denied appellant's petition for writ of habeas corpus, In re Ruben Odell Boulware, case No. B174108.

FN2. Appellant represents that he began serving his prison term December 10, 2003, and left state prison for the remand proceedings March 8, 2007.   The record shows only that he was first sentenced November 10, 2003, and that the matter was called for retrial May 2, 2007, when appellant was resentenced on count 4..  FN2. Appellant represents that he began serving his prison term December 10, 2003, and left state prison for the remand proceedings March 8, 2007.   The record shows only that he was first sentenced November 10, 2003, and that the matter was called for retrial May 2, 2007, when appellant was resentenced on count 4.

FN3. We grant appellant's request for judicial notice of the reporter's transcript of the May 2, 2007 sentencing, filed concurrently with his supplemental opening brief..  FN3. We grant appellant's request for judicial notice of the reporter's transcript of the May 2, 2007 sentencing, filed concurrently with his supplemental opening brief.

FN4. All further references to statutes are to the Penal Code unless stated otherwise..  FN4. All further references to statutes are to the Penal Code unless stated otherwise.

FN5. See section 4019, governing local custody credit, and Discussion, post..  FN5. See section 4019, governing local custody credit, and Discussion, post.

FN6. The California Supreme Court disapproved People v. Honea (1997) 57 Cal.App.4th 842, to the extent it suggested that the defendant was entitled to presentence conduct credits for the period he spent in local custody between the original sentencing and resentencing after the trial court's recall of sentence under section 1170, subdivision (d).  (People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.).  FN6. The California Supreme Court disapproved People v. Honea (1997) 57 Cal.App.4th 842, to the extent it suggested that the defendant was entitled to presentence conduct credits for the period he spent in local custody between the original sentencing and resentencing after the trial court's recall of sentence under section 1170, subdivision (d).  (People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.)

FN7. The clerk issued two amended abstracts of judgment, both filed on March 11, 2010.   The first abstract appearing in the clerk's transcript does not reflect the custody time awarded in the original sentencing.   The second abstract in the record correctly reflects the court's order..  FN7. The clerk issued two amended abstracts of judgment, both filed on March 11, 2010.   The first abstract appearing in the clerk's transcript does not reflect the custody time awarded in the original sentencing.   The second abstract in the record correctly reflects the court's order.

THE COURT: * FN*.  DOI TODD, Acting P. J., ASHMANN-GERST, J., CHAVEZ, J.