1 Filed 11/5/14 P. v. Stringer CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. JULIAN DAVID STRINGER, Defendant and Appellant. A139504

(Contra Costa County Super. Ct. No. 041659549)

Julian Stringer appeals from a judgment of conviction and sentence imposed after he entered guilty pleas to charges of first de gree robbery and volunta ry manslaughter. He contends the trial court’s calculation of pres entence custody credits (Pen. Code, § 2900.5) violated his plea agreement and, even independent of the plea agreement, he is entitled to

more credits than the court aw arded. Respondent disagrees and urges that the matter be

remanded for the trial court to determine whether Stringer was actually awarded too many credits. We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY On March 13, 2008, Stringer was parole d from prison, where he had been

incarcerated for crimes unrelated to these proceedings. Accordin g to records of the California Department of Corrections an d Rehabilitation (CDCR), this parole was suspended on April 8, 2008, e ffective March 27, 2008, with the notation “Rtn to Prison for Fu[r]ther Proceedings.” Because one of the grounds for later revoking Stringer’s parole was his act of absconding from parole supervision (see post ), it appears this suspension was due to Stri nger absconding from parole.2 Before Stringer could be apprehended and returned to prison, he committed the crimes charged in these proceedings. On Ap ril 17, 2008, while armed, he perpetrated residential burglary, robbery, and other crim es against victims Homer Winkle, Soraya Rebeles, and Lance Rebeles. In June 2008, he shot and killed victim Ralph Morales.

A. Stringer’s Arrest and Incarceration July 24-November 6, 2008 On July 24, 2008, St ringer was arrested in Nevada. A parole hold was promptly imposed on July 25, 2008, and he was transpor ted to San Quentin State Prison, where he arrived on August 12, 2008. At Stringer’s parole revocation hearing on September 16, 2008, revocation was sought based on his alleged acts of murde r, use of a firearm, a nd “[a]bsconding parole supervision.” Stringer signed an “optional waiver” at the hearing, which allowed the Board of Parole Hearings (BPH ) to determine at a later date , without a formal hearing, whether Stringer violated his parole. (See People v. Kennedy (2012) 209 Cal.App.4th 385, 390 ( Kennedy ); Cal. Code Regs., tit. 15, § 2641, subd. (b).) Based on this waiver, Stringer was reinstated on parole effective July 25, 2008. BPH noted that Detective Santos appeared at the revocation hearing an d stated that charges would definitely be filed against Stringer, there was a delay due to several recent homicides in Antioch, and robbery charges might be added as well. On September 30, 2008, the district a ttorney filed a felony complaint against Stringer in regard to th e murder of Morales. On October 7, 2008, BPH rescinded th e optional waiver action and revoked Stringer’s parole as of the re vocation hearing date of Septem ber 16, 2008. A notation of

“11 mos” in the CDCR records indicates the revocation resulted in an additional

11 months of incarceration. The record does not specify that the charge of “absconding parole supervision” had been dismissed or was otherwise not a partial basis for the

revocation. Stringer remained in San Quentin State Prison until November 6, 2008, when he was transferred to jail in Contra Costa County to face prosecution for the charges in this

case.3 B. Charges, Plea Agr eement, and Sentence By an information filed in December 2009, Stringer wa s charged with the Morales murder (Pen. Code, § 187) and possessing a firearm as a felon (former § 12021, subd. (a)(1)). 1 It was further alleged that Stringer personally used a firearm in the course of the murder (§ 12022.53, subds. (b )-(c)) and had served a prior prison term (§ 667.5, subd. (b)). By an information filed in June 2010, Stringer was char ged in connection with the residential burglary and robbery. Specifically, the information alleged that he perpetrated kidnapping for purposes of robbery (§ 209, subd. (b)), first degree residential robbery (§ 212.5, subd. (a)), carjacking (§ 215, subd. (a)), and first degree burglary (§ 459). It was further alleged that Stringer bound his victims (§ 1170.84) and personally used a firearm (§ 12022.53). As to the burglary, it was alleged that someone other than an accomplice was present (§ 667.5, subd. (c)( 21)). The information also alleged that Stringer had served a prior pris on term (§ 667.5, subd. (b)). In August 2012, after a tria l in the Morales murder cas e, a jury found Stringer guilty of being a felon in po ssession of a firearm, but coul d not reach a verdict on the murder charge. On March 11, 2013, Stringer resolved all of the charges in the two informations by entering into a written plea agreement, by wh ich he would plead guilty to first degree residential robbery (§ 211), ad mit a firearm enhancement (§ 12022.5), and plead guilty to voluntary manslaughter (§ 192). As rele vant here, line 19 of the plea agreement contained the following statem ent initialed by Stringer: “I have credit for 1,699 actual days served through today, ” followed by the handwritten annotation “From 7-24-08.” At the plea hearing on April 2, 2013, the court asked the prosecutor to recite the terms of the plea bargain. The prosecutor did so, without any mention of presentence custody credits. Stringer’s attorney did no t object. Nor did she contend that the plea bargain required presentence custody credits to commence as of July 24, 2008. Rather,

1 Unless otherwise indicated, all statut ory references are to the Penal Code.4 defense counsel stated that she had “the credits written [in the plea ag reement] as of back on March 18,” so she would “give the actual cr edits when we do the sentencing.” As of March 18 (2013), she clarified, Stringer had se rved “1,692” actual days. The prosecutor and the court agreed it would make sense to calculate the actual credits at the time of sentencing. At the sentencing hearing on July 29, 2013, the court sentenced Stringer to 15 years in state prison, as set forth in the plea agr eement. The court also stated, “So let’s talk about [Stringer’s] credits then.” Stringer’s attorney re sponded, “I’m going to request that your Honor at least give him some cred it for the time that he was in prison after his arrest on this case.” By this, defense coun sel argued that the calculation of presentence custody credits should begin as of the da te of Stringer’s arrest in Nevada on July 24, 2008. The trial cour t rejected this proposal, ruli ng that Stringer was not entitled to receive presentence custody credits in th is matter until November 6, 2008, the day he was transferred from San Quentin State Prison to the Contra Costa County jail, because his incarceration between July 24 and November 6 was not due solely to the current charges (murder and robbery), but due in part to his prior act of absconding from parole. The court explained: “[D]efendant is entitled to full actu al and conduct credit for parole or probation revocation time if revoked solely because of the curre nt crime. If the revocation is due to any other cause, the defe ndant is not entitled to any credits against the new custody term.” Although defense co unsel objected to the November 6 date, counsel did not mention the July 24 annotation in the plea agreement or contend the plea agreement required the calcula tion to start on July 24. This appeal followed.

II. DISCUSSION Stringer contends the court erred by calcu lating his presentence custody credits from the date of his transfer from state pris on to Contra Costa County jail (Nov. 6, 2008) rather than the date of his arrest (July 24, 2008). This was erroneous, he urges, because (1) his plea agreement provided that the time would be cal culated from Ju ly 24, 2008; and (2) regardless of the plea agreement, July 24 was the appropriate start date under the5 law. As a result, Stringer argues, he should have been awarded at least 1,825 days actual

time credit and 273 local conduct credits, for a total of 2,098 da ys, rather than 1,726 days

actual time credit and 258 local cond uct credits, totaling 1,984 days. 2

A. Whether the Calculation of Credits Violated the Plea Agreement “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations .] ‘The fundamental goal of contractual interpretation is to give effe ct to the mutual intention of the parties.’ [Citation.] If contractual language is clear and explicit, it governs. [Citation.]” ( People v. Shelton (2006) 37 Cal.4th 759, 767 .) We assume the parties to the agreement read and understood the writing before it was presented to the trial court for approval. ( People v.

Toscano (2004) 124 Cal.App.4th 340, 344.) The plea agreement contained the language: “I have credit for 1,699 actual days served through today . . . [f]rom 7-24-08.” This language is ambiguous. One reasonable interpretation, advocated by Stringer, is that Stringer ha d 1,699 actual days served

because the calculation was to begin on July 24. This would s uggest that a term of the plea agreement was that credits would be ca lculated from July 24. However, another reasonable interpretation, akin to respondent’s position, is th at Stringer was asserting he had 1,699 actual days served if the calculation were to begi n on July 24—that is, counting

2 Respondent makes a number of counte r-arguments we find unpersuasive. For example, respondent argues that Stringer wa ived his challenge to the calculation of credits because he agreed to give up his ri ght to appeal his conviction and sentence, “except for the issue of credits.” But since the waiver di d not include the issue of credits, the issue of credits was not waived. Responde nt also argues that Stringer’s appeal was based on his sentence or other matters occu rring after the plea that do not affect the validity of the plea, and theref ore Stringer cannot now argue th at the trial court violated the plea bargain. However, Stringer is not c ontending that his plea agreement is invalid, but that it should be enforced (according to his interpretation ). Lastly, respondent points out that Stringer did not conten d at the sentencing hearing that the court’s calculation of his credits was inconsistent with the plea ag reement. Stringer responds that if this constituted a waiver, his counsel was ineffective. We need not address this issue, since we decide the appeal on a ground other than waiver. In any event, defense counsel’s silence may reasonably be expl ained by the fact that the pl ea agreement was not intended to set July 24 as the firm date for presentence custody credits to begin.6 from July 24, he had been in custody 1,699 days. Under this interpretation, the parties were not fixing the start date for the calculati on of custody credits to be July 24, but were leaving the calculation for the senten cing hearing under prevailing law. Because the plea bargain is reasonably sus ceptible to both of these interpretations, we must resolve the ambiguity by other means. In this case, the clearest indication of the parties’ intent is the manner in which they addressed the credit issue at the ensuing hearings. At the plea hearing, the prosecutor’s oral statement of the plea terms contained no mention of presentence custod y credits, let alone a July 24 start date. Defense counsel did not mention the matter as a sp ecific term of the agreement at the plea hearing, and the court and the parties agreed to postpone the credits calculation until sentencing. Moreover, at the sentencing hearing, no one—not the court, Stringer, Stringer’s attorney, the prosecutor, or anyone else—eve r suggested that the start date for the calculation of presentence custody credits was fixed by the plea agreement as July 24, even though the defens e hotly contested the court’s decision to use the start date of November 6. If, in fact, Stringer or hi s attorney understood the plea agreement to require a credit commencement date of Ju ly 24, counsel would not have merely

“ request [ ed ] that your Honor at least give him some credit for the time that he was in prison after his arrest”; instead, counsel w ould have insisted that the plea agreement compelled credits for the entirety of that period. From th is evidence, it may reasonably be inferred that the parties di d not believe the plea agreemen t required the calculation to begin on July 24. Stringer has failed to establish that th e court’s award of credits beginning on November 6, 2008, constitutes a breach of his plea agreement.

B. Whether the Credit Calculation Violated the Law Under section 2900.5, subd ivision (b), “credit shall be given only where the custody to be credited is attr ibutable to the proceedings related to the same conduct for

which the defendant has been convicted.” Th us, “section 2900.5 di d not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was7 the true and only unavoidable basis for the earlier custody.” ( People v. Bruner (1995) 9 Cal.4th 1178, 1192, italics omitted ( Bruner ) [no presentence credit for custody as a parole violator, where custody was based not only on the offenses leading to the subject sentence, but also on an unrelated ground]; see People v. Mendez (2007) 151 Cal.App.4th 861, 864 [credit can be ap plied only to a sentence arising from the

conduct that was the “sole reason for his loss of liberty” during the presentence period].)

It is the defendant’s burden to establish th at the conduct leading to the sentence was a “but for” cause of the presentence custody. ( Bruner, supra , 9 Cal.4th at p. 1180; Kennedy, supra , 209 Cal.App.4th at p. 392.) Before Stringer was arrested and taken in to custody on July 24, 2008, his parole had already been suspended, ostensibly du e to his act of absconding from parole supervision. Therefore, his time in custody between his July 24 arrest and his November 6 transfer to Contra Costa County jail on the murder and robbery charges was not solely due to the murder and robbery charges, but also due to his absconding from parole. Furthermore, Stringer has not established that he is unable to receive custody credit for this period against his increased term for absc onding from parole. Ac cordingly, he is not entitled to presentence custody credits for th e July 24-November 6 period against his sentence in this case. ( Bruner, supra , 9 Cal.4th at pp. 1180-1181, 1192.) Stringer insists that the sole cause of his custody upon arrest was the Morales murder charges, because the a rrest occurred with the assistan ce of Antioch police, based on a warrant that Antioch police had obtained in connection with the murder. Further, Stringer asserts, the statement of Detective Sa ntos at the revocation hearing confirms that the current charges were the so le basis for his custody. The detective’s statement was summarized by BPH as follows: “Detective Santos appeared and stated that charges will definitely be filed by the D.A. in this case. Probably next week. The reason the filing was delayed was because there were several re cent homicides in An tioch. He also has supplemental robbery charges pending that the police and D.A. wanted to combine.” Stringer’s argument is unconvincing. While it is true that Antioch police participated in the arrest based on the wa rrant, the record also shows that Stringer’s8 parole had been suspended already, and the United States Marshall’s Office and “state parole” were the ones who actually tracked Stringer to Nevada. And while the

detective’s statement to BPH confirms that Stringer was be ing held due to the Morales murder, it does not show that he was being held solely due to the Morales murder, rather than his preexisting parole violation. Thus, substantial evidence still supports the court’s factual finding that Stringer was held at San Quentin State Pris on from July 24 to

November 6 on the basis of the absconding violation as we ll as the murder and robbery charged in this case. Also unpersuasive is Stringer’s reliance on Kennedy, supra, 209 Cal.App.4th 385. There, the defendant was arre sted on criminal charges as well as a technical parole violation based on his possessi on or use of alcohol. ( Id . at pp. 389-390.) Like Stringer, he signed an optional waiver of his parole re vocation hearing; but unlike Stringer, he later requested a revocation hearing at which the te chnical parole violation was dismissed. ( Id . at pp. 390-391.) Because th e technical violation was dismis sed, the sole basis for the defendant’s parole revocation and presentenc e custody was the criminal charges. The

defendant had therefore established that the conduct leading to his sentence was a but-for cause of his presentence custody, entitling him to credit for the entire period of his presentencing incarceration. ( Id . at pp. 392, 394.) In the matter before us, the technical pa role violation alleged against Stringer was not dismissed. His parole revocation was sought on th e ground of absconding from parole (as well as murder and firearm use ), and there is no indication the absconding charge had been dismissed or dropped by th e time parole was revoked. It therefore remained part of the basis for his presentence custody. Stringer fails to prove that his current charges were the sole cause of his presentence custody from July 24 to November 6, or that he cannot receive credit for that custody against his sentence for any other charge. He therefor e fails to establish that he is entitled to presentence custody credits commencing July 24, 20 08, in this case.9 C. Prosecutor’s Request for Remand Respondent contends that Stringer actually received too many credits because the proper start date was not November 6, 2008, but some later date. Specifically, respondent argues that Stringer’s parole was revoked as of September 16, 2008, with the notation “11 mos,” indicating that the revocati on resulted in an add itional 11-month term until August 2009. Since Stringer’s parole re vocation was due at le ast in part to his absconding from parole, this 11-month period of incarcera tion is too. Therefore, respondent maintains, because Stringer was in custody for ab sconding parole and not just the murder and robbery charges until August 2009, the court erred in awarding Stringer credits beginning in November 2008. (See In re Bustos (1992) 4 Cal.App.4th 851, 853-855 [when presentence incarceration is due in part to a parole revocation based on grounds other than the new offense, no presentence credits may be granted on the new charge because of the parole hold].) Responde nt asks us to remand the matter for the trial court to recalculate Stringer’s credits and st rike any excess credits previously awarded. Respondent, however, did not raise this ar gument at the sentencing hearing. Nor did it object to the trial court’s implicit fact ual determination that Stringer’s transfer to local custody on November 6 was for the pu rpose of holding him thereafter on the charges in this case alone. Respondent has wa ived its argument or, at least, failed to

establish cause for remand.

III. DISPOSITION The judgment is affirmed.10 NEEDHAM, J.

We concur.

JONES, P. J.

BRUINIERS, J.