Morales v. County of Orange CA4/3

Filed 8/26/16 Morales v. County of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

LUIS ALBERTO MORALES,

Plaintiff and Appellant, G052109

v. (Super. Ct. No. 30-2013-00683764)

COUNTY OF ORANGE et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed. O’Neil & Matusek and Henry John Matusek II for Plaintiff and Appellant. Gutierrez, Preciado & House and Calvin House for Defendants and Respondents.

I. INTRODUCTION Plaintiff Alberto Morales spent an extra month in incarceration beyond what his plea bargain called for. He then sued the Orange County sheriff, her head jailer, and the county, for that month. Because the error was not theirs, but that of a court clerk, we affirm the summary judgment those defendants have obtained. II. FACTS Morales was arrested and charged with receiving stolen property (Pen. Code, § 496D1) and participation in a criminal street gang aka “street terrorism” (§ 186.22, subdivision (a)); he was also subject to a sentencing enhancement for committing a crime to benefit a criminal street gang (§ 186.22, subdivision (b)), usually called a gang enhancement. He made a plea deal with the prosecutor. The deal provided Morales would be sentenced to the middle term of two years in state prison, and one year, to run concurrently, on the street terrorism count, reduced to a misdemeanor. As to the gang enhancement, a low term enhancement of two years was imposed and then stricken, so in effect there was no gang enhancement. The upshot of all this, as Morales’ counsel told the court in presenting it, was that he would get a two-year sentence with certain credits. Morales was sentenced pursuant to the plea bargain on May 11, 2012, and was released from incarceration by February 8, 2013. There is no point here in explaining how the various credits reduced two years to about 9 months but he should have gotten out about a month earlier. The bargain in open court contemplated one year on the street terrorism count, and the transcript of the oral proceedings says nothing about the one year being served in county jail as distinct from state prison. But the written sentencing order on Orange County Superior Court letterhead dated May 14, 2012, yclept “Notice to Sheriff,”