Filed 8/13/15 P. v. Grissom CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN EUGENE GRISSOM,

Defendant and Appellant.

F068880

(Kings Super. Ct. No. 13CM4651B)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert S. 

Burns, Judge.

Julia K. Freis, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

 

* Before Kane, Acting P.J., Detjen, J. and Peña, J.
2.

INTRODUCTION

Appellant/defendant Steven Eugene Grissom was sentenced to six years pursuant 

to a negotiated disposition after pleading no contest to conspiracy to possess drugs in jail 

or prison (Pen. Code, §§ 182, subd. (a)(1), 4573.8).1 On appeal, his appellate counsel has 

filed a brief that summarizes the facts with citations to the record, raises no issues, and 

asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 

436 (Wende).) We order a limited remand for the superior court to determine if 

defendant’s custody credits were correctly calculated, and otherwise affirm.

FACTS2

Case No. 13CM7534

On September 7, 2013, a deputy attempted to conduct a traffic stop on defendant 

because he was riding a bicycle against traffic and in the roadway. Defendant saw the 

deputy but refused to stop. He rode away, jumped off his bicycle and ran. The deputy 

followed on foot and ordered him to stop, but defendant kept running. The deputy caught 

up with him and defendant surrendered. Defendant was under the influence of 

methamphetamine. He was carrying a large paper bag which contained marijuana, 

methamphetamine, and narcotics paraphernalia.

On the same day, defendant was arrested and booked into custody for possession 

of marijuana and methamphetamine and for resisting an officer.

According to the probation report, defendant was held in jail on this case from 

September 7, 2013, to September 27, 2013.

Case No. 13CM4651B

In November 2013, several law enforcement organizations conducted an 

investigation into whether there was a conspiracy to smuggle narcotics into the Kings 

 

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 The following facts are taken from the probation report and the prosecutor’s 

factual statement in support of the plea.
3.

County Jail. Based on wiretaps and surveillance, the officers determined defendant was 

part of the conspiracy along with Mariano Herrada, “Ronaldo” Ornelas, and Joe Trejo, to 

bring narcotics into the jail in furtherance of the Norteño and Nuestra Familia gangs.

On November 17, 2013, officers monitored a telephone call from one conspirator 

to defendant, who was not in custody. The conspirator asked defendant whether he was 

going back to jail. Defendant said he was going to court the next day, and that his trial 

would start if he did not get drug court. Defendant was not sure if he was going to be 

remanded. On the same day, officers monitored a telephone call between two other 

conspirators, who also were not in custody. They discussed whether defendant was going 

to be remanded into custody and whether he could transport contraband into the jail.

On November 18, 2013, officers monitored a telephone call between the 

conspirators. Defendant was present with one of the conspirators during the telephone 

call; the conspirator said he was wrapping something up for defendant, referring to the 

contraband. About an hour later, there was another call between the conspirators, and 

they discussed how they were almost done packaging the contraband that defendant was 

going to smuggle into the jail.

Later on November 18, 2013, defendant appeared in court, and he was remanded 

into custody in the jail. A few hours later, officers monitored another telephone call 

between the conspirators. They discussed how defendant was taken into custody and that 

he was able to smuggle almost everything into the jail.

At some point after defendant was remanded into custody, he was searched and 

found to be in possession of three packages of marijuana, which were hidden within his 

body. The record is silent as to what day he was searched.

On November 22, 2013, a complaint was filed in case No. 13CM4651B, charging 

defendant and codefendants Mariano Herrada, “Ronald” Ornelas, and Joe Trejo with 

count I, conspiracy to possess drugs in jail or prison (§§ 182, subd. (a)(1), 4573.8), with a 

gang enhancement (§ 186.22, subd. (b)(1)(A)); and count II, active participation in a 
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criminal street gang (§ 186.22, subd. (a)), and that defendant had three prior prison term 

enhancements (§ 667.5, subd. (b)).

The Plea

On December 3, 2013, defendant entered into a negotiated disposition in case 

No. 13CM4651B, and pleaded no contest to count I, conspiracy to possess drugs in jail or 

prison, and admitted the gang enhancement, for a stipulated term of six years. The 

prosecutor stated the following factual basis for the plea:

“[O]n November 19th of 2013, the defendant [along with the three 

codefendants] conspired to bring marijuana and paraphernalia into Kings 

County Jail, and the defendant did so when he was remanded to court on a 

different case on the 19th.

“After the agreement of the conspiracy ... was reached, an overt act 

was committed by [defendant] specifically on November 18, that he did 

bring marijuana into the county jail, specifically there were three packages 

found in [defendant’s] person,... one package with 15.1 grams, a second 

package being 16.2 grams and a third package being 23.1 grams, and those 

are net weight....

“Also, further evidence would have been presented through expert 

testimony that the conspiracy to commit that Count 1 was done for the 

benefit of a specific street gang, in this case specifically Nortenos.”

The court asked defense counsel if he agreed with the prosecutor’s statement of 

the factual basis. Defense counsel replied that defendant was actually “remanded on 

November 18th, but the rest is agreed.” The court asked defendant if that was correct, 

and defendant said yes.

As part of the negotiated disposition, defendant also pleaded no contest in case 

No. 13CM7534 to misdemeanor resisting an officer on September 7, 2013 (§ 148, subd. 

(a)(1)). The court granted the prosecution’s motion to dismiss the remaining charges in 

both cases.
5.

Sentencing

On January 2, 2014, the court conducted the sentencing hearing. According to the 

probation report, defendant had 42 days of actual credit in the conspiracy case 

(No. 13CM4651B), based on being in jail from November 22, 2013 to January 2, 2014, 

plus 42 days of conduct credits, for a total of 84 days.

In the resisting case (No. 13CM7534), defendant had 63 days of actual credit, 

based on being in jail from September 7, 2013, to September 27, 2013; and when he was 

remanded on November 18, 2013, to January 2, 2013; plus 62 days of conduct credits, for 

a total of 125 days.

As to the conspiracy conviction, the court denied probation and sentenced 

defendant to the upper term of three years for count I, plus the midterm of three years for 

the gang enhancement, consistent with the negotiated disposition. The court imposed a 

concurrent term of 365 days for the misdemeanor resisting conviction. The court 

followed the probation report’s recommendation and awarded conduct credits as set forth 

in the report.

On February 5, 2014, defendant filed a timely notice of appeal. His request for a 

certificate of probable cause was denied.

Postsentence Letters

Appellate counsel sent a letter to the superior court dated April 24, 2014, 

requesting correction of the custody credits in the conspiracy case (No. 13CM4651B) to 

46 actual days and 46 days of credit, for a total of 92 days.

In a letter dated May 14, 2014, appellate counsel advised the superior court that 

the abstract of judgment in the conspiracy case (No. 13CM4651B) erroneously stated that 

defendant admitted a gang enhancement pursuant to section 186.22, subdivision (a)(1), 

and requested another correction to clarify that he admitted the enhancement pursuant to 

section 186.22, subdivision (b)(1) and did not admit the substantive offense.
6.

On August 5, 2014, the superior court filed an amended abstract of judgment, 

which correctly stated defendant admitted the gang enhancement under section 186.22, 

subdivision (b)(1). It did not change defendant’s credits, and the court did not respond to 

counsel’s request about the credits.

DISCUSSION

As noted above, defendant’s counsel has filed a Wende brief with this court. The 

brief also includes the declaration of appellate counsel indicating that defendant was 

advised he could file his own brief with this court. By letter on June 18, 2014, we invited 

defendant to submit additional briefing. To date, he has not done so. However, 

defendant’s presentence credits may have been erroneously calculated.

Presentence Credits

As noted above, while this appeal was pending, defendant’s counsel wrote to the 

superior court about an alleged error in the calculation of his presentence credits in the 

conspiracy case (No. 13CM4651B). Counsel noted the court awarded 42 actual days and 

42 days of credit for a total of 84 days. However, counsel stated defendant was arrested 

in the conspiracy case on November 18, 2013, and remained in custody until the 

sentencing hearing on January 2, 2014, which amounted to 46 actual days. Counsel 

requested that the superior court amend the abstract of judgment to reflect defendant had 

46 actual days and 46 days of conduct credits for a total of 92 days. Defense counsel also 

asked the superior court to correct an error in the abstract as to the gang enhancement.

After counsel filed the Wende brief in this case, the superior court prepared and 

filed an amended abstract which corrected the error as to the gang enhancement. 

However, it did not change defendant’s presentence credits. Counsel did not request to 

file supplemental briefing on this matter.

In People v. Bruner (1995) 9 Cal.4th 1178 (Bruner), the California Supreme Court

explained that “a prisoner is not entitled to credit for presentence confinement unless he 

shows that the conduct [that] led to his conviction was the sole reason for his loss of 
7.

liberty during the presentence period....” (Id. at p. 1191.) A defendant’s sentence may 

not be credited with presentence custody time attributable to different criminal conduct. 

(Ibid.) “[W]here 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 ... a ‘but for’ cause of the earlier restraint....” (Id. at pp. 1193–

1194.) The burden is on the accused to establish entitlement to presentence custody 

credit. (Id. at p. 1194.)

In this case, the record reflects defendant was remanded into custody on 

November 18, 2013, possibly on the pending misdemeanor resisting case. At some point 

after he was remanded to jail, he was found in possession of narcotics and paraphernalia 

that had been hidden within his body, which resulted in the conspiracy plea. The record 

is silent as to what day the search occurred.

According to the probation report, defendant’s presentence credits in the 

conspiracy case were calculated based on being in custody for that case starting on 

November 22, 2013.

It is impossible to determine from this record whether the superior court correctly 

calculated defendant’s presentence credits in the conspiracy case, or if Bruner applies to 

the calculation of the credits. Appellate counsel requested the superior court to correct 

the abstract as to both the gang enhancement and the calculation of credits. The court 

filed a corrected abstract as to the gang enhancement but did not modify or comment on 

counsel’s request about the credits.

After independent review of the record, we find that no other reasonably arguable 

factual or legal issues exist. However, we will order a limited remand to address the 

credits issue.
8.

DISPOSITION

The matter is remanded for the superior court to determine if defendant’s conduct 

credits were correctly calculated in case No. 13CM4651B, and, if applicable, to file an 

amended abstract of judgment. In all other respects, the judgment is affirmed.