This article provides a roadmap for resolving credits issues in criminal appeals. However, counsel should be advised that the decisions of the Fifth and Third District Courts of Appeal emanate only from the justices of those courts who sit on a myriad of possible three-justice panels, and CCAP cannot predict how an individual panel may react to a credits issue. With that said, CCAP presents the following "ramblings and ruminations" on Fares motions.
NEW! In Third District cases, appellate counsel must seek modification of a probation condition for lack of a scienter requirement in the trial court following the Fares procedures. Counsel is advised to read the case of People v. Patel (Jun. 21, 2011, C066321) 196 Cal.App.4th 956, mod. Jul. 19, 2011, 196 Cal.App.4th 956. The Patel holding is discussed below under "What to include in the requests."
Penal Code section 1237.1 = Fares
In People v. Fares (1993) 16 Cal.App.4th 954, the Fourth District Court of Appeal concluded that the appropriate vehicle to correct credit errors was to seek correction in the trial court because, under Penal Code section 2900.5, it is the obligation of the superior court to calculate the number of credits. (Id. at p. 958) The Court of Appeal in Fares was “disturbed that this attempt at a minor correction of a sentence error has required the formal appellate process.” (Id. at p. 957.) The court warned it would reserve “the right in the future summarily to dismiss appeals directed to correction of presentence custody calculations when it appear[ed] that prior resort to the superior court in all likelihood would have afforded an adequate remedy.
The Legislature then codified the Fares opinion by enacting Penal Code section 1237.1, which became effective in 1996, and states:
No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.
Scope of Penal Code section 1237.1.
Penal Code section 1237.1 does not on its face make a distinction between a mathematical miscalcuation of credits and a substantive issue dealing with statutory interpretation of credits statutes, or an exercise of judicial discretion in applying a credits statute. The language of the statute broadly states its mandate applies to “an error in the calculation of presentence custody credits.” (Pen. Code, § 1237.1.) Arguably, it could apply to a range of credits issues such as dual credits, Johnson-waivers (People v. Johnson (1978) 82 Cal.App.3d 183), entitlement to credits for time spent in different custodial settings like CRC, etc. In People v. Marchbanks (Dec. 16, 2008, A121517) [nonpub. opn.], the First District, division two, recognized the ambiguity in the statute but declined to settle the question.
However, it should be noted, the error in question in Fares, was a minor, mathematical miscalculation which the Court of Appeal “deemed clerical, inadvertent, or at most negligent.” (People v. Fares, supra, 16 Cal.App.4th at p. 957.)
Further, legislative history of Penal Code section 1237.1 described the purpose of the new law was “to curtail misuse of the formal appellate process to correct minor sentencing errors when alternative forums for resolution exist.” (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No. 354 (1995-1995 Reg. Sess.).)
Thus, if there is a substantive legal issue involving the application of the a credits statute or an issue involving the exercise of judicial discretion, appellate counsel is probably safe in raising the issue as an argument on appeal without seeking correction in the trial court first. (See, e.g., People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139 [Fifth District addressing a legal issue about credits with no mention of compliance with Pen. Code, § 1237.1]; People v. Earp (Sept. 7, 2006, C049425) [nonpub. opn.] [the contention involves the legal interpretation of a Johnson waiver, not the correction of clerical or mathematical error]; but see People v. Curry (Aug. 13, 1996, F024175) [nonpub. opn.].)
Send an informal Fares letter first.
So what should appellate counsel do when a credits miscalculation is found?
Frequently a simple letter to the trial court (commonly called a Fares letter) will achieve the result sought.
The main reason for filing an informal letter request is because if a formal motion is filed the trial judge is likely to place the matter on calendar, thus requiring the need to request approval for travel expenses and for appearing at the hearing. (See Preauthorization Procedures article.)
Calculation of credits and preparation of the Fares request should be done soon as practically possible. This will allow time for the issue to be resolved before the opening brief is due.
What to include in the requests.
Besides describing the credits miscalculation, the trial court should be reminded that under section 1237.1 appellate counsel is required to make the request in the trial court before raising the issue on appeal. Counsel should explain why the court has jurisdiction to correct the error. Counsel should also point out, citing People v. Clavel (2002) 103 Cal.App.4th 516, that the process of an informal motion has been approved. Additionally, the letter should inform the trial judge that the appeal is awaiting his/her decision on this issue and the current briefing schedule deadline.
You will probably get faster results if you make the trial court’s job easy. To this end, counsel should provide the trial court everything it needs to rule on the request, if the record permits. In other words, attach all pertinent documentary evidence, such as the abstract and pages of the probation report which show arrest date and other dates of incarceration. Sometimes, such as in mixed-conduct parole revocation cases, counsel may have to rely on matters outside the record. This might entail obtaining records from the client’s parole or probation officer, and these too can be attached to the Fares request.
Finally, counsel should be sure to request that the court issue a minute order and amended abstract of judgment and transmit these to the Department of Correction, the Court of Appeal, as well as counsel for the parties on appeal pursuant to California Rules of Court, rule 8.340(a).
A sample Fares request can be found at in the CCAP online Motions Samples Book (look under “F” in the list.)
NEW! In the Third District, follow Fares procedures to correct a probation term that lacks a scienter requirement in the trial court having jurisdication.
In its recent June 21, 2011 Patel opinion, the Third District Court of Appeal considered the repeated appellate challenges to the lack of a scienter requirement in probation conditions. (People v. Patel (Jun. 21, 2011, C066321) 196 Cal.App.4th 956.) Patel's probation term prohibited him from being in places where alcohol was the chief item for sale, but it did not require he "knowingly" do so. Noting that there is an uncontradicted body of law "establishing that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter" the court found that raising this issue on appeal does not provide a deterrent effect for probation officers to include scienter in a probation term or a protective effect for defendants. The court announced it will no longer entertain this issue on appeal and would instead construe probation terms to require the prohibited action be undertaken knowingly. In the modified opinion (Jul 19, 2011, 196 Cal.App.4th 956), the court added that its decision does not prevent appellate counsel from seeking to correct in the trial court having jurisdiction, probation conditions which do not have a scienter requirement, similar to a credits motion in the Fares context. Counsel may use the same Fares sample, modified to address correction of the probation condition, and citing Patel.
Who does one serve?
Even with an informal letter request for correction, use a formal proof of service – this is a common oversight by inexperienced appellate counsel working with the Third and the Fifth. Be sure to serve the Court of Appeal, the district attorney, Attorney General, the client, and the appellate project. Additionally, a courtesy copy to trial counsel would not hurt, especially since one may find oneself in the position where the informal request does not work and a formal motion is required. Under these circumstances, appellate counsel will likely be enlisting trial counsel’s help in appearing at the formal motion.
Counsel must stay on top of the status of the informal letter.
By now, most trial judges are familiar with informal Fares requests and promptly act upon them. But sometimes nothing happens for weeks and it falls between the cracks. If there is no response to the informal motion within two weeks of its filing, counsel should call the judge’s chambers to: 1) ensure the request was received and 2) remind the court that the appeal is awaiting a decision. This phone call will generally prompt the court to act. If not, a polite follow-up letter to the judge will sometimes do the trick.
Counsel should obtain a ruling on the Fares request before filing the Appellant’s Opening Brief, even if it means filing an extension of time. In the extensions, counsel should advise the Court of Appeal that appellant is awaiting the ruling on the Fares request and state the last know status of the request. Continue to file extensions as needed in the Court of Appeal, each time updating the court with the contacts counsel has made with the trial court and the latest status of the request sitting before the trial judge.
What if the superior court takes no action on the informal request?
If more time passes without action from the trial court, appellate counsel should be prepared to take the next step – filing a formal motion in the trial court.
In People v. Clavel, supra, 103 Cal.App.4th 516, 519, the Court of Appeal dismissed an appeal because the sole issue raised was whether the trial court had miscalculated the credits and no formal motion had been filed. In Clavel, appellate counsel had filed an informal request for correction of credits, but the trial court failed to act on the request. (Id. at p. 518.) While the Clavel court expressly condoned the informal procedure to the extent that it gets the desired result, it held that if no action is taken by the superior court, counsel must proceed to make a formal motion. (Id. at p. 519.)
Where the trial court does not respond to the informal request at all, both the Third and the Fifth Districts have followed Clavel. (See e.g., People v. Elliot (Jan. 23, 2006, C049419) [nonpub. opn.].) Consistent with that authority, if the superior court takes no action on the informal motion, rather than raising the issue on appeal, counsel should file a formal motion and thereby obtain a disposition which would be subject to appellate review.
Counsel should keep in mind that a motion labeled an ex parte motion is not a formal motion. All parties must be served. Counsel will also need to begin working in earnst with trial counsel to have them appear on the motion if possible. If not, counsel will need need to request pre-approval for travel expenses and for time for appearing at the hearing. (See Preauthorization Procedures article.) Contact your assigned CCAP buddy if you need additional assistance in understanding these procedures.
What if the informal letter is denied or partially denied?
When the informal request is denied on the merits, the Third District is of the opinion that if the trial court has ruled, a formal motion would serve no purpose. (See e.g., People v. Baker (Dec. 23, 2004, C043971) [nonpub. opn.][appellate counsel's two applications for conduct credit, formally served upon the People and resulting in formal orders of denial, suffice as a "motion" within the meaning of section 1237.1]; and People v. Pendarvis (Jul. 28, 2006, C050527) [nonpub. opn.].)
The Fifth District has given direction both ways. Most recently the Fifth District disagreed with Clavel and held no formal motion was needed in this situation. (See People v. Harris (Apr. 2, 2009, F055425) [nonpub. opn.].) What the court found important was that all parties have an opportunity to respond. Since appellate counsel had filed a letter motion, served it on respondent and the district attorney, and since the trial court considered the motion and denied it, nothing would be gained through a formal noticed motion because it is unlikely the trial court would change its ruling.
But in one case decided several years ago, the Fifth District held that even if the trial court rules on the informal Fares request, if the ruling is not the one desired, a formal motion should then be filed. (People v. Wiltse (Apr. 11, 2005, F045655) [nonpub. opn.]) Because the record on appeal did not include a noticed motion, the appeal was dismissed.
What if the credits issue is not the sole issue on appeal?
The appellate courts recognize an exception when the credits error is not the only issue to be raised on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411 [Second District].) Acosta had often been followed by most other appellate districts. (See e.g., People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3. [Fifth District]; People v. Estrada (May 19, 2005, F046293) [nonpub. opn.]); People v. Acosta (Mar. 3, 2008, C055262) [nonpub. opn.]); People v. Lee (Aug. 31, 2005, C043308, C043992) [nonpub. opn.]); People v. Thomas (Jan. 6, 2005, C044979) [nonpub. opn.]).) But the California Supreme Court has made clear that an appellate court is not obligated to consider an appellant’s credits claim even if other issues are raised on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101 [the Court of Appeal may consider defendant's claim of miscalculated presentence credits but is not obligated to do so].)
In one unpublished case, the Fifth District refused to consider a credits issue on appeal even though appellate counsel had raised other issues because appellant had not raised it at sentencing and appellate counsel had not complied with Penal Code section 1237.1 by raising it subsequently “by motion” in the trial court. (People v. Felder (Aug. 11, 2005, F045853) [nonpub. opn.].) Likewise, the Third District refused to consider the credits issue and dismissed an appeal because the other issue raised was a clerical issue, not a substantive one. (People v. Sargent (Apr. 8, 2008, C052101) [nonpub. opn.].)
And recently, the Third District made clear it is "the better practice" to comply with section 1237.1, notwithstanding Acosta, supra, 48 Cal.App.4th 41, "because it wastes judicial resources to require an appellate court to resolve matters which could easily be corrected in the trial court." (People v. Ramos (Feb. 2, 2009 C056331) [nonpub. opn.] [dismissing appeal for failure to comply with section 1237.1 even though other issue raised was a substantive legal issue].) Thus, out of an abundance of caution, it seems more prudent to file a motion in the trial court even if other issues will be raised on appeal.
If appellate counsel is going to urge the Court of Appeal to exercise its discretion to address the credits issue, counsel needs to make sure that the appellate record is sufficiently complete that it permits review of the issue. In People v. Ramos, supra, (C056331), and People v. McCutcheon (Feb. 28, 2008, C055259) [nonpub. opns.], the Third District declined to exercise its discretion and reach the issue where the record was not clear. In People v. Flores (Mar. 21, 2006, F047392) [nonpub. opn.]), the Fifth District reached the same result. Refusal to consider the issue on appeal in such an instance makes sense since the defendant has the burden on proof on entitlement to credits (In re Nickles (1991) 231 Cal.App.3d 415, 419, 423-424), and also bears the burden of ensuring that the appellate record is adequate for review (People v. Barton (1978) 21 Cal.3d 513, 519-520).
Even when counsel thinks it is safe to raise a credits issue on appeal because there are other issues, there are tactical reasons for filing an informal request in the trial court. If the client is serving a short prison term, consider whether he or she would have likely served the time before the appellate court hears the issue. (Counsel should keep in mind that even if the client has been released from custody, the issue of credits is not moot because any credits that were improperly denied will reduce the client’s period of parole. (In re Welch (1987) 190 Cal.App.3d 407, 409; In re Kemper (1980) 112 Cal. App.3d 434, 438-439.))
Not only will a request to the trial court provide quicker relief for the client, but also it may be the only way to get such a matter resolved where there are adverse consequences that might warrant abandonment. And in possible Wende situations, by filing a Fares request in the trial court, appellate counsel can get the credits problem resolved while preserving for the client the benefit of a Wende review.
Why not rely on supplemental briefing?
One should not file a Wende in the Third District while awaiting a ruling on a Fares request. The Third District does not want unnecessary supplemental briefs and has expressed concern that some attorneys file opening briefs because they have run out of time and are mistaken in thinking they can fix things later by submitting a supplemental brief. The Third District will require counsel to explain why the issue was not filed earlier. This is why it is advised to make a Fares request as soon as possible in the case.
In People v. Johnson (Mar. 28, 2003, C040050 [nonpub. opn.]) appellate counsel filed a Wende brief and then learned the superior court had refused to correct its credit calculation after receiving the Fares letter. Counsel then asked to file supplemental briefing raising the credit issue only. The Third denied that request, ordered the Wende brief stricken and ordered counsel to file either a Wende brief or a brief raising an issue.
The Fifth District may be more willing to accept supplemental briefing in this situation, but this cannot be taken for granted.
Juvenile delinquency proceedings.
Juvenile delinquency appeals are not subject to Penal Code section 1237.1. (In re Antwon R. (2001) 87 Cal.App.4th 348, 350.) Section 1237.1 referred to an appeal by the “defendant” from a “judgment of conviction.” Minors charged with violations of the Juvenile Court Law are not “defendants” and adjudications of juvenile wrongdoing are not “criminal convictions.” (Id. at pp. 352-353.)
Even so, because the minor is more likely to obtain a quicker result in the juvenile court, CCAP urges appellate counsel to raise the issue in the lower court instead of as an argument on appeal.
Can the informal letter request be adapted to other correction requests?
Yes! Appellate counsel routinely have success in correcting clerical errors in abstracts of judgment and minute orders, and in seeking clarification of fines and fees pursuant to People v. High (2004) 119 Cal.App.4th 1192, and even insertion into the clerk’s minutes of statements of reasons for striking a component of a sentence per Penal Code section 1385 via informal letter requests to the trial court.
The key here is to emphasize that one is writing pursuant to the spirit of People v. Fares, supra, 16 Cal.App.4th 954, and People v. Clavel, supra, 103 Cal.App.4th 516, 519, fn. 4, because the case contains a clerical error which could be corrected with greater judicial economy at the superior court level rather than by appeal.
And, in fact, at one appellate district has urged appellate counsel faced with clerical errors in the abstract of judgment, to attempt correction in the trial court before elevating the issue to a formal appeal or face the risk of dismissal. (People v. Little (1993) 19 Cal.App.4th 449, 452 (Sixth Dist.); see also People v. Mortis (Sept. 29, 2004, B169493) [nonpub. opn.].)
As with all pleadings filed in superior court, counsel will be compensated a reasonable amount of time based on the circumstances of the case for seeking a credits correction and related steps necessary to accomplish the task. Keep track of the time necessary for each step, reporting time in appropriate categories on the claim form (i.e., motions, communication time, etc.), and include explanations for any unusual or extraordinary amounts of time claimed..
In the situation where a noticed motion is required and trial counsel will not appear on appellant’s behalf, travel and appearance authorizations will be made according to travel guidelines and are comparable to procedures for doing a bail motion. (See Preauthorization Procedures article.) Contact your assigned CCAP buddy if you need additional assistance in understanding these procedures.