PEOPLE v. LOPEZ

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Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Manuel LOPEZ, Jr., Defendant and Appellant.

Cr. 39568.

Decided: January 12, 1982

Paul Arthur Turner, Encino, under appointment by Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Mark Alan Hart, Deputy Attys. Gen., for plaintiff and respondent.

STATEMENT OF THE CASE

John Manuel Lopez (Lopez) appeals from a jury trial conviction of one count of assault with a deadly weapon (Pen.Code, s 245, subd. (a)) and one count of battery (Pen.Code, ss 242, 243). A further allegation that he had inflicted great bodily injury within the meaning of Penal Code section 12022.7 was found to be true.

Lopez pled guilty to a separate count of battery (Pen.Code, ss 242, 243) which had been severed for purposes of trial.

Lopez' timely appeal is substantially without merit. However, the People concede that the trial court failed to sentence on a battery count, which omission this court has dealt with to its satisfaction.

FACTS 1

In July 1980 Lopez was an inmate at Ventura County Sheriff's Honor Farm at Ojai assigned to assist Clifford Jones, a county employee, in preparing and delivering food to other jails. In the early morning of July 17 Lopez refused to help Jones take food up to the “Hill,” a minimum security jail on the Honor Farm. Jones told Lopez he was going to “roll him up,” meaning take him to see the deputy sheriff for discipline.

As Jones walked toward the deputy sheriff's office, Lopez struck him from behind, hitting Jones on the side of the head. Jones subsequently fell to the ground. Lopez, who was wearing steel-tipped boots, then kicked Jones repeatedly in the face and chest, causing him to suffer serious facial injuries. Sergeant Sparks, witnessed the attack, grabbed Lopez and took him out of the area. Another county employee, Raymond Dauilla, also saw Lopez kick Jones. Additionally, Jones saw his attacker. Jones suffered serious facial injuries.

Around 9:30 the next morning, July 18, Deputy Sheriff James Boyd took Lopez to the booking area of the main jail. Two other deputies, Wade and Velasquez, were in the booking area when Lopez arrived. Boyd, who had photographs of the injured Jones, showed them to Wade and Velasquez after which the officers discussed the pictures among themselves.

Lopez, who was within earshot of the officers asked if he could see the pictures. Boyd told him “no.” Lopez then said, “Come on man. Let me see what I did to him.” At the time he made this statement, Lopez had not been read his Miranda rights.

Six days later, while Lopez was in jail waiting for arraignment, he attacked two police officers.

DEFENSE

Lopez testified in his own behalf at trial and maintained that he did not hit or kick Jones. He admitted asking Boyd about the pictures of Jones, but denied saying he wanted to see what he had done.

CONTENTIONS

Lopez contends that his alleged statement concerning the photographs of Jones should have been suppressed. He further asserts that the sentencing court erred in the following particulars: in ordering payment of $30 to the victim's Indemnification Fund without specific findings on the record; denying good time credits; denying probation. Lopez urges that the sentence as to count II must be vacated and resentencing granted as to all counts.

DISCUSSION

The Alleged “Interrogation” of Lopez.

Lopez first contends that the officers' discussion of the photographs of Jones in his presence constituted a custodial interrogation within the meaning of Rhode Island v. Innis (1980) 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297. He asserts that since he had not yet been advised of his Miranda rights at that time, his statement as testified to by the officers concerning the picture was inadmissible and should have been suppressed. We disagree.

Rhode Island v. Innis, supra, 446 U.S. at p. 301, 100 S.Ct. at p. 1689, defines an interrogation as “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Fns. omitted.) In Rhode Island, two police officers escorting a murder suspect in their police car began discussing the probable proximity of the murder weapon, a gun, to a school for handicapped children. In response to that discussion, Innis told the officers where the gun could be found. The officers' conduct, held to be an act reasonably likely to evoke an incriminating response, constituted interrogation.

In In re Albert R. (1980) 112 Cal.App.3d 783 at pages 791-792, 169 Cal.Rptr. 553, the court adopted the Innis definition of interrogation. The suspect in that case had invoked his Miranda right to remain silent. A short time later, a police officer told the suspect, “that was sure a cold thing you did.” Based on the fact the defendant had already indicated a desire to remain silent, the court held the officer's statement constituted improper interrogation.

Nothing in the facts of the case herein even remotely suggests that Lopez was “interrogated.” Unlike the situations in In re Albert R., supra, 112 Cal.App.3d 783, 169 Cal.Rptr. 553 and Rhode Island v. Innis, supra, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 no one spoke to Lopez or said anything evocative. At no time prior to Lopez' statement had the officers' discussion of the photographs of Jones included Lopez or in any manner invited his participation. As a matter of fact, in response to Lopez' request to see the photographs, Officer Boyd replied in the negative. It was then that Lopez entreated that he wanted to see what injury he had inflicted on his victim.

“As the Court in Miranda (v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) noted: ‘Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ Id., at 478, 86 S.Ct., at 1630 ... (emphasis added).” (Rhode Island v. Innis, supra, 446 U.S. at pp. 299-300, 100 S.Ct. at pp. 1688-1689.)

The trial court did not err in finding Lopez' statement regarding the photographs admissible.

The Assessment of a Fine Without Adequate Prior Findings by the Trial Court.

Lopez' assertion that the trial court erred in ordering him to pay $30 pursuant to Government Code section 139672 because the court failed to make a specific finding as to his ability to pay the fine is without merit. The trial court found on the record that Lopez did not have the “ability to make repayment for attorney's fees,” and then went on to assess the $30 fine pursuant to Government Code section 13967. Implicit in the ruling is a finding by the trial court that while Lopez could not afford a major outlay of funds for attorney's fees, he could pay the modest amount of $30 to the Indemnity Fund.

Nothing in Government Code section 13967 requires that a trial court set forth its findings on the record. Had the Legislature so intended, it could have made specific provision therefor, as was done for example, in Penal Code section 1170, subdivisions (b) and (c).3 We see no reason to further burden the trial court in this regard, absent an express request for such findings on the record.

Lopez' Claim of Good Time Credits.

Lopez' assertion that he was entitled to good conduct credit is illogical and without authority.

Under Penal Code section 2900.5,4 a defendant may receive credit toward his term of imprisonment for time spent in custody prior to the commencement of his sentence. Penal Code section 40195 authorizes good behavior and work performance credit for prisoners confined in city or county jails, industrial farms or road camps. Under this section a pretrial detainee eventually convicted of a misdemeanor and sentenced to county jail receives conduct credit against that sentence for his pre-sentence jail time. In People v. Sage (1980) 26 Cal.3d 498, 507, 165 Cal.Rptr. 280, 611 P.2d 874, the Supreme Court extended this code section to include detainees eventually convicted of a felony and sentenced to prison.

Subdivision (c) of Penal Code section 4019 sets forth the following method of determining the number of good conduct credits earned: “(c) For each six-day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.”

At the time of the probation and sentencing hearing, Lopez had been in custody for 194 days as a result of his conviction in the present case. The trial court found that he was entitled to 48 additional days “for not having refused to work while in jail.” As to good time credits, Lopez asserts that the court was entitled to deduct only one day of good-time credit for one six-day period wherein he admittedly did not obey the rules and regulations established by the sheriff when he assaulted two deputies six days after his incarceration commenced on the instant case. The trial court ruled that Lopez was not entitled to any good time credits.

The argument that each six days spent without an infraction of jail rules automatically entitles an inmate to one day good-time credit was rejected by the court in In Re Walrath (1980) 106 Cal.App.3d 426, 164 Cal.Rptr. 923 wherein the defendant was denied good-time credits following an escape. The court found the defendant's “earn as you go” approach to “good-time credit” unacceptable. One necessary consequence would be that for acts of misconduct during any given six-day period, however frequent and serious, only one day of credit could be lost. Since the purpose of good behavior credits is to act as an incentive for an inmate not to misbehave, we think it unlikely that the Legislature intended the sheriff to blind himself to the severity or frequency of the misconduct in determining the appropriate sanction. It must be noted that pursuant to Penal Code section 2900.5 it is “the duty of the court imposing the sentence to determine ... the total number of days to be credited pursuant to the provisions of this section.”6

“The most reasonable reading of the statute is that the one-for-six-day provision was meant to be interpreted simply as a ratio. Thus for every six days of the total term to which a person is sentenced, or ‘committed,’ he receives one day credit unless he misbehaves before the end of the term. On a one-year term, the defendant is entitled to sixty days of credit; if there is misconduct, the sheriff may deduct all or any part of this credit, depending on the severity of the misconduct regardless of whether the misconduct occurs at the beginning or the end of the sentence.” (Emphasis added; Id., at p. 431, 164 Cal.Rptr. 923.)

Penal Code section 4019 specifically provides that credits are earned unless the prisoner has misbehaved. The six to one computation is merely a ratio, not a method of automatic vesting. When, as here, an inmate assaults two deputy sheriffs during his pretrial confinement, we conclude that it was entirely appropriate for the trial court to deny any good-time credit for that pre-sentence period of confinement.

Alternatively, Lopez contends that Penal Code section 2931, subdivision (b)(3)7 proscribes the complete denial of good conduct credits. Such is clearly not the case.

Lopez further argues in this regard that the denial of good conduct credit constitutes double punishment under the theory that he is being punished twice for assaulting the deputies-once with the assault conviction and sentence thereon and again with the denial of good conduct credit. We disagree.

Good behavior in jail is awarded by good conduct credits. Similarly, money is paid for labor performed while in custody. (Pen.Code, s 2700.) A denial of good-time credit based upon bad conduct does not constitute punishment any more than a refusal to pay for work which was not done constitutes an unlawful taking of property.

Since Lopez did not behave well, he did not earn good conduct credits. He thereby was not punished twice for assaulting the deputies; he was sentenced only once for that offense.

Failure to Sentence As to Count II.

Lopez next contends, and the People concede, that on January 26 the trial court failed to sentence as to count II, the battery count.

On January 26, 1981, the trial court which presided over the case before us wherein Lopez was convicted of assault and battery purported to sentence him as to those counts. Thereafter on January 27, 1981, another court which heard Lopez' guilty plea as to the subsequent battery charge held a separate hearing and sentenced Lopez on that count according to the terms of the plea bargain, taking into account the sentence rendered on the other counts on January 26.

Penal Code section 654 provides in pertinent part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one....” An act under section 654 “need not be an act in the ordinary sense that it is a separate, identifiable, physical incident, but may be ‘a course of conduct which violates more than one statute and comprises an undivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ (Citation.)” (In re Adams (1975) 14 Cal.3d 629, 634, 122 Cal.Rptr. 73, 536 P.2d 473; People v. James (1977) 19 Cal.3d 99, 119, 137 Cal.Rptr. 447, 561 P.2d 1135.)

In the case herein, the trial court correctly ascertained that under Penal Code section 654 the assault and battery “was one course of conduct, one end in view, and judgment should be imposed on only one of the counts and not on both.” (See People v. Parks (1971) 4 Cal.3d 955, 961, 95 Cal.Rptr. 193, 485 P.2d 257.) Thus, the trial court's failure to enunciate the sentence as to the battery count was tantamount to a stay of execution of a battery sentence pending service of sentence on the assault count and thereafter permanently, the correct procedure where Penal Code 654 is involved. (See People v. James, supra, 19 Cal.3d 99, 120, 137 Cal.Rptr. 447, 561 P.2d 1135; In re Adams, supra, 14 Cal.3d at pp. 636-637, 122 Cal.Rptr. 73, 536 P.2d 473; People v. Cohen (1970) 12 Cal.App.3d 298, 328, 90 Cal.Rptr. 612.)8

The Denial of Probation.

Lopez' final contentions that both sentencing courts failed to adequately set forth the grounds upon which probation was denied and sentence imposed and that the sentencing court at the January 27 hearing erroneously believed that it could not grant probation are also without merit.

“Although the court must state its reasons for denying probation (Pen.Code, s 1170, subd. (c); People v. Arceo (1979) 95 Cal.App.3d 117, 157 Cal.Rptr. 10....), its reasons for imposing an aggravated term from which it necessarily follows that probation should be denied, are sufficient. (See People v. Eades (1979) 95 Cal.App.3d 688, 691, 157 Cal.Rptr. 223....)” (People v. West (1980) 107 Cal.App.3d 987, 995, 165 Cal.Rptr. 24; see also People v. Butler (1980) 107 Cal.App.3d 251, 254-255, 165 Cal.Rptr. 709.) It is also settled that the court must “state for the record why consecutive sentencing is warranted.” (People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66.)9

At the sentencing hearing on January 26, the trial court without question adequately stated its reasons for denying probation. It indicated that it had read and considered the probation report, which indicated that Lopez was ineligible for probation, and then continued, “Well, regardless of eligibility, having looked at the long record of the defendant, the many times he's been in jail, the fact he's previously been in state prison sometime, makes me feel that probation would not be appropriate in this case. (P) In other words, his record is such that I think there is little chance that he would be successful on probation, and chiefly, for that reason, probation is denied.”

At the January 27 sentencing hearing, the court which sentenced Lopez on the subsequent battery count to which he had pled guilty listened to the arguments of counsel as to sentencing in that matter and concluded: “At this time, I've considered this matter. I don't think (Lopez is) legally entitled to probation in any event upon the facts. I don't think that's appropriate. Application for probation is denied.” (Emphasis added.)

Such a statement by the sentencing court as to Lopez not being legally entitled to probation is tantamount to the court's assessing his eligibility therefor. To require additional verbiage by the court as to further reasons for denying probation would be to call for surplusage upon the facts of this case, including the fact that Lopez was incarcerated at the time of the second battery as well as the first one. The court here was clearly correct in its assessment that based upon the matters it considered in the case Lopez was ineligible for probation and it did not abuse its discretion denying probation. (See People v. Bolton (1979) 23 Cal.3d 208, 216, 152 Cal.Rptr. 141, 589 P.2d 396.)

After determining that Lopez was unsuitable for probation, the court sentenced him to eight additional months for the battery he had pled to, which term was to run consecutively to the six years already imposed. According to the agreement by which Lopez had pled guilty, his maximum sentence as to all counts was to be no greater than seven years. The court noted that Lopez “could have served a maximum sentence of 9 years” and noted that it thought “that 7 years (was) reasonable.” By ordering that the sentence as to the pleaded battery run consecutively, he was effectuating the seven year sentence contemplated by the plea bargain.

Moreover, as the court in People v. Blessing (1979) 94 Cal.App.3d 835, 838-839, 155 Cal.Rptr. 780, noted: “The objective (of the requirement that the trial court state its reasons for its sentence choice) is meaningful review of the exercise of discretion by the trial court.... (P) Our ability to review the decision here is not impaired by the failure of the trial court to make reference to the above rule. Conversely, a simple recital of the applicable criteria would not have served any useful purpose. (P) We are unwilling to engage in idle gestures or reach ridiculous results by slavish adherence to ritualistic form. A brief glance at the record shows that defendant's crimes met every criteria listed in the rule and there is a total absence of any mitigating circumstances.” (See People v. Powell (1980) 101 Cal.App.3d 513, 519, 161 Cal.Rptr. 803.)

A review of the record in the case herein whereby Lopez while incarcerated “did willfully and unlawfully use force and violence upon the person of ... a peace officer” different from the officer involved in the earlier battery indicates that the battery in question was violently perpetrated and occurred six days after the battery and assault resulting in Lopez' conviction thereof. The “violence of the act” may properly support the aggravation of a sentence. (Cal.Rules of Court, rule 421; People v. Ramos (1980) 106 Cal.App.3d 591, 601, 165 Cal.Rptr. 179; People v. Davis (1980) 103 Cal.App.3d 270, 280, 163 Cal.Rptr. 22.) Likewise, consecutive sentences may be imposed where the crimes are independent of each other and involved multiple victims. (Cal.Rules of Court, rule 425; People v. Kilpatrick (1980) 105 Cal.App.3d 401, 414-415, 164 Cal.Rptr. 349; People v. Powell, supra, 101 Cal.App.3d at pp. 518-519, 161 Cal.Rptr. 803.)

The judgment is affirmed.

FOOTNOTES

1.  As required by the rules of appellate review, we view the evidence in the light most favorable to the judgment below. (People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738.)

2.  Government Code section 13967 provided in pertinent part: “(a) Upon a person being convicted of a crime of violence committed in the State of California resulting in the injury or death of another person, if the court finds that the defendant has the present ability to pay a fine and finds that the economic impact of the fine upon the defendant's dependents will not cause such dependents to be dependent on public welfare the court shall, in addition to any other penalty, order the defendant to pay a fine commensurate with the offense committed, and with the probable economic impact upon the victim, of at least ten dollars ($10), but not to exceed ten thousand dollars ($10,000). (P) (b) The fine imposed pursuant to this section shall be deposited in the Indemnity Fund in the State Treasury, the proceeds of which shall be available for appropriation by the Legislature to be divided equally to indemnify persons filing claims pursuant to this article and to provide assistance to established local comprehensive programs for victims and witnesses, including but not limited to, pilot local assistance centers for victims and witnesses established pursuant to the provisions of Article 2 (commencing with Section 13835) of Chapter 4 of Title 6 of Part 4 of the Penal Code. (P) (c) It is the intent of the Legislature that funds appropriated pursuant to this section for local assistance centers for victims and witnesses shall be in addition to any funds appropriated as provided in Section 13835.8 of the Penal Code.”

3.  Penal Code section 1170, subdivisions (b) and (c), dealing with determinate sentencing state in relevant part: “(b) The court shall set forth on the record the facts and reasons for imposing the upper or lower term.... (P) (c) The court shall state the reasons for its sentence choice on the record ....”

4.  Penal Code section 2900.5 provides in pertinent part: “In all felony and misdemeanor convictions ... when the defendant has been in custody ... all days of custody ... including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his total term of imprisonment.”

5.  Penal Code section 4019 provides: “(a) The provisions of this section shall apply in all of the following cases: (P) (1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding. (P) (2) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence, in a criminal action or proceeding. (P) (3) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp for a definite period of time for contempt pursuant to a proceeding, other than a criminal action or proceeding. (P) (b) Subject to the provisions of subdivision (d), for each six-day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. (P) (c) For each six-day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. (P) (d) Nothing in this section shall be construed to require the sheriff, chief of police, or superintendent of an industrial farm or road camp to assign labor to a prisoner if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp. (P) (e) No deduction may be made under this section unless the person is committed for a period of six days or longer.”

6.  Penal Code section 2900.5 provides for crediting to a defendant all time spent in confinement, “and including days credited to the period of confinement pursuant to Penal Code section 4019.”

7.  The California Supreme Court in People v. Sage, supra, 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, specifically held that section 2931 is inapplicable to pre-sentence confinement. The court noted: “Language in sections 2930, 2931 and 2932 clearly indicat(es) that the Legislature contemplated the credits governed by these sections would be earned in prison.... Subdivision (b) of section 2931 limits credit to four months for each eight months served ‘in prison.’ Section 2932, subdivision (a), sets forth the procedure to be followed whenever the Department of Corrections seeks to deny credit because of misbehavior or failure to participate. That the department could not follow this procedure with regard to incidents occurring during presentence confinement in county jail is another indication that section 2931 does not grant credit for such periods.” (Id., at p. 506, 165 Cal.Rptr. 280, 611 P.2d 874.)

8.  Lopez also contends that under Penal Code section 17, subdivision (b)(1) the trial court's failure to impose sentence on the battery count, that charge necessarily constitutes a misdemeanor. Section 17 provides that “when a crime is punishable ... by imprisonment in the state prison ... it is a misdemeanor ... under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison.” Lopez maintains that the trial court's failure to impose sentence on the battery count in its effort to comply with Penal Code section 654 constitutes “punishment other than imprisonment.” This argument is without basis in either law or fact; Lopez' battery of Jones in the case herein inflicted serious injury and was properly charged as a felony.

9.  “California Rules of Court, rule 425, sets forth the criteria affecting consecutive sentences as follows: ‘Criteria affecting the decision to impose consecutive rather than concurrent sentences include: (P) (a) Facts relating to the crimes, including whether or not: (P) (1) The crimes and their objectives were predominantly independent of each other. (P) (2) The crimes involved separate acts of violence or threats of violence. (P) (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (P) (4) Any of the crimes involved multiple victims. (P) (5) The convictions for which sentences are to be imposed are numerous. (P) (b) Any circumstances in aggravation or mitigation.’ ” (People v. Blessing (1979) 94 Cal.App.3d 835, 838, 155 Cal.Rptr. 780.)

KLEIN, Presiding Justice.

POTTER and LUI, JJ., concur.