People v. Foster

• Citation: 46 Cal.Rptr.3d 861,141 Cal.App.4th 1285
• Decision Date: 02 August 2006
• Docket Number: No. H028837.,H028837.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Morris Al FOSTER, Defendant and Appellant.

46 Cal.Rptr.3d 861

141 Cal.App.4th 1285

The PEOPLE, Plaintiff and Respondent, v. Morris Al FOSTER, Defendant and Appellant.

No. H028837.

Court of Appeal, Sixth District.

August 2, 2006.

Rudy Kraft, under appointment by the Court of Appeal for Appellant, for Defendant and Appellant Morris Al Foster.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Martin S. Kaye, Supervising Deputy Attorney General, Christopher W. Grove, Deputy Attorney General, for Plaintiff and Respondent The People.

RUSHING, P.J.

At issue in this case is defendant's entitlement to credit against his prison sentence for time he spent in the county jail prior to sentencing. Based on contacts with parole authorities, the trial court ruled that defendant was not entitled to credit because his confinement was partly attributable to the revocation of his parole based in part on grounds independent of the conduct underlying the present charges. Defendant contends that the court erred by refusing to conduct a hearing into the factual basis for the parole revocation and certain procedural irregularities asserted by defendant in the parole proceedings. In explaining this refusal, the court opined that defendant had an adequate administrative remedy for the claimed defects in the revocation proceedings. In this the court was mistaken, because the regulations providing for administrative review of a parole revocation order had been repealed. On this basis we conclude that the court erred, and we remand for reconsideration of defendant's challenge to the denial of custody credits.

BACKGROUND

Defendant was arrested on August 9, 2004, while on parole from state prison. On August 12, 2004, he was charged with transporting or furnishing a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), with enhancements including prior convictions. On March 11, 2005, he pleaded guilty to this charge and admitted the priors with the understanding that he would receive a sentence of three years in prison. At the conclusion of this hearing the court announced that the matter was "being referred to probation department solely for the purpose of notification of victim, if any, and calculation of credits."

The probation officer filed a "Waived Referral" memorandum stating that "[a]ccording to State Parole Agent Wilkins . . . ., the defendant's parole was revoked for twelve months, ineligible for good time / work time relative to his parole violation, dating from the arrest date of August 9, 2004 and scheduled to complete his sentence on August 2, 2005. The revocation was based on the instant offense, as well as failure to follow reporting instructions, and frequenting areas of drug-related activity. As such, the defendant is not entitled to dual credits in this matter." In other words, defendant's incarceration for the parole violation rested in part on conduct independent of that underlying the criminal charges. As a result, he was not entitled to the sentence credits he would otherwise have received under Penal Code section 2900.5. (See People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194, 40 Cal. Rptr.2d 534, 892 P.2d 1277 ["where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a `but for' cause of the earlier restraint"].)

The court received the probation memorandum at a hearing on April 12, 2005.¹ A dispute arose as to defendant's reported "failure to follow reporting instructions" and what that meant. Defendant told the court that he had complied with instructions and that a named parole officer should be able to corroborate that fact. The court said, with defense counsel's consent, that it would "contact parole to find out what it could about this particular thing."

The matter was continued to April 19, at which time defendant again stated that he had reported to parole on August 6, 2004, adding that he had signed a log so documenting and had filled out a monthly report with the assistance of "Officer O'Lear." The court then said, "`I did speak to Agent Wilkinson at the Parole Department. Mr. Wilkinson pulled Mr. Foster's file, went over the file with me on the phone. [¶] The results of Mr. Foster's case were he had a violation of parole hearing, and one of the violations that was found true at that hearing was failure to report as instructed. The dates for the failure to report as instructed predated the occurrence of the sale-of-cocaine case that Mr. Foster is pending sentencing on. Accordingly, that is a mixed-conduct parole violation, and I am not going to say on the record that I don't believe Mr. Foster or that I don't believe Mr. Wilkinson because I really don't have any basis to say that one way or the other. [¶] But what I will say is that this issue has already been decided at the parole-violation level, and they found to be a true a failure-to-report allegation . . . . And Mr. Wilkinson searched the file while I was on the phone, indicated that there was no record in the file of a monthly report or a sign-in for Mr. Foster for August 5th or 6th or 7th or any time near there. So that is the information that the court relied on. It's the information that is also listed in the . . . [¶] . . . [¶] . . . probation report, and that is the information that the court is going to use for the purposes of determining credits. . . ."

Defense counsel then requested a "formal hearing" on the question of credits "since I believe there seems to be a dispute here." He expressed interest in subpoenaing "not only Agent Wilkinson, probably Agent O'Lear, if I can find out who that is, and get the records for that date." The court, however, replied that it was not basing its ruling on "the credibility of any witness" but on, "for lack of a better term, the law of the case. There has been a finding by parole through a Morrissey² hearing that he was in violation of his parole for failing to report. I really do not anticipate re-litigating that issue that was litigated at a Morrissey hearing and do not intend to relitigate that issue."

Defense counsel then stated that defendant had failed to attend the revocation hearing because he had been under the influence of medication for his back injury. Defendant explained, "I was loaded. They gave me a thousand milligrams of Vicodin, like, 20 minutes prior to the hearing. And when they came and asked me, I told them, `Hey, I'm high.' I just had a thousand milligrams back to back for the past five and a half months. I was on Vicodin almost six straight months, and I was loaded. I couldn't—I was like this (indicating) when they came. I was nodding when they knocked on the door, and I said, `Yeah, what's up?' I said `I can't face no hearing right now. I'm loaded. I can't represent myself.' The attorney there, I can't tell him how to represent me. I'm smashed up."³

The court replied, "I think that the resolution for that issue and the resolution of the alleged inaccuracy in their conclusion of failing to report as required is an issue that needs to be taken up at the parole level and at the level of C.D.C. I'm not going to relitigate that issue here. There is an appeal process for when defendants believe their Morrissey conclusion is inaccurate, and I'm going to let Mr. Foster pursue it there. I'm not going to grant a hearing as to credits. I intend to impose sentence today and give the credits that have been given by Miss Rae from the date of his entry of plea, and Mr. Foster can address those issues. My understanding is that C.D.C. can and has in the past corrected, when shown to be wrong, an inaccurate Morrissey conclusion. [¶] . . . [¶] . . . If the failing to report conclusion is found to be faulty, I will . . . [interruption] . . . I will gladly grant Mr. Foster credits to the date of his initial incarceration in this matter . . . ."

After conferring with defendant, counsel asked "if the court would allow me to try and find Agent O'Lear who he claims is the one that was there that day and then actually signed him in so I can try and talk to that person to see if I can get confirmation of what Mr. Foster is telling me, that he did actually sign in and show up on either August 6th or 7th . . . ." Counsel said he had been trying to locate this agent but had not yet succeeded. The court stated, however, that even if counsel came forward with such evidence it would not change the court's ruling. "If that information changes the parole board's conclusion that Mr. Foster was in violation for failing to report as instructed and in fact proves that he did report as instructed, and they delete that allegation of violation of parole, then that would remove any doubt in my mind that it's mixed conduct and he would be entitled to it. But I'm not going to make a conclusion contrary to the conclusion that that body made absent them acting on additional evidence themselves." Likewise, the court observed, "I don't know what they relied on. I'm going to leave that determination to them. Again, if that determination is made, we can certainly calendar it, and the court would be more than willing to grant Mr. Foster additional credits." The court proceeded to pronounce a sentence of three years, allowing 40 days actual credit and 20 days conduct credit, for a total of 60 days' credit for presentence confinement. Defendant filed this timely appeal.

DISCUSSION

I. Introduction

The sole question on appeal is whether the trial court erred in relying on the reported findings of parole authorities to limit defendant's presentence confinement credits without considering his objections to those findings.⁴ The court ruled in effect that the administrative findings were conclusive, at least until such time as...