People v. Ramudo CA3 ( 2014 )

Filed 12/22/14 P. v. Ramudo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent, C074234
v. (Super. Ct. No. 62120197)
ANTONIO MANUEL RAMUDO,
Defendant and Appellant.
Defendant Antonio Manuel Ramudo entered a no contest plea to arson of an
inhabited structure (Pen. Code, § 451, subd. (b); count one)1 and admitted he used a
device designed to accelerate the fire or delay ignition of the fire (§ 451.1, subd. (a)(5)).
Defendant entered his plea in exchange for dismissal of the remaining counts [arson of a
structure or forest (§ 451, subd. (c); count two); possession of flammable material (§ 453,
subd. (a); count three)].
The trial court denied probation, finding the presumption of ineligibility was not
overcome. The court sentenced defendant to state prison for the low term of three years
1 Undesignated statutory references are to the Penal Code.
1
for the underlying offense. The court imposed a three-year low term for the enhancement
and then struck the additional punishment pursuant to section 1385.
Defendant appeals. He contends the trial court abused its discretion in finding the
presumption of ineligibility for probation was not overcome, claiming the court failed to
give significant weight to his age and lack of criminal sophistication. We conclude there
was no abuse of discretion. Defendant also challenges the award of custody credits,
claiming his offense was a serious, not a violent, offense, the 15 percent limitation of
section 2933.1 was eliminated with the 2011 amendment of section 4019, and he is
entitled to additional credit for time spent in custody from the date he was sentenced to
the date the restitution order was entered. We reject defendant’s credits contentions.
However, we conclude the trial court made an addition error in its calculation of
presentence custody credits and order the judgment modified.
FACTS AND PROCEDURAL HISTORY
Around midnight on November 8, 2012, Mark C., his wife Barbara C., and their
teenage twins, son M.C. and daughter N.C., were awakened by their home’s burglar
alarm. They had been sleeping upstairs in their two-story home. Mark ran downstairs
and found the front window was broken and a fire was burning the carpet in front of the
window. Mark and M.C. put out the fire with water from the kitchen.
Sheriff deputies arrived and found a note taped to the family’s front door that read,
“Leave Town.” Inside the broken window, deputies found a large stone, a sock soaked in
flammable liquid, and multiple burn spots on the carpet. On the ground outside the
broken window, deputies found a wine bottle with a flame at the top. In the front yard,
deputies found a lighter with a marijuana leaf sticker. Deputies concluded the sock and
wine bottle had been used to make a “Molotov Cocktail” that fell apart before it
completely entered the home.
M.C. and N.C. thought defendant and E.G. were responsible for the fire. M.C. and
N.C. had had disputes with defendant and E.G. N.C. stated defendant and E.G. chased
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her home from school when she was in the seventh grade and defendant threw a light
bulb at her head when she was in high school in October 2012. After M.C. confronted
defendant about the light bulb incident, defendant and E.G. started to harass and insult
M.C. The day after the fire, N.C. saw defendant and E.G. staring at her and talking
nervously.
Sheriff deputies contacted E.G. Although E.G. initially denied knowing anything
about the fire, he eventually stated defendant threw the “Molotov Cocktail” into the home
because defendant did not like M.C. and N.C. E.G. was not present. E.G. claimed
defendant told him he threw a rock through the window and then the device. The sock
fell out but a fire started and defendant ran. E.G. stated defendant owned a lighter
identical to the one found by the deputies.
Sheriff deputies interviewed defendant at his home. Defendant initially denied
knowing anything about the fire but when confronted with E.G.’s statements, defendant
explained, “ ‘I took a rock and broke the window and then I threw the Molotov Cocktail
through the window.’ ” Defendant stated the sock fell out but went inside and started a
fire, and the bottle fell to the ground. Defendant then fled. Defendant stated he used
lawn mower gasoline as fuel. He committed the offense because he does not like M.C.
and N.C., and wanted to scare them. When asked if he intended to kill them, defendant
said he was just trying to scare them and did not know what he would have done if they
died. Defendant’s father explained defendant probably obtained the empty wine bottle
from the trash.
A petition filed in juvenile court alleged defendant committed attempted murder
(four counts), arson of an inhabited structure, arson of a structure or forest, possessed
flammable material, and used a device designed to accelerate the fire or delay ignition of
the fire. Defendant was detained. Thereafter, the prosecutor dismissed the four counts of
attempted murder. After a fitness hearing, defendant was found unfit for juvenile court.
3
The felony complaint filed in adult court charged the same offenses as alleged in
the juvenile petition except the attempted murder counts. Defendant was released on
pretrial home detention with a GPS monitoring device. He complied with the terms and
conditions of supervised release. After defendant entered his plea, he was remanded into
custody with no bail.
DISCUSSION
I
Presumption of Ineligibility for Probation
Defendant contends the trial court abused its discretion in finding the presumption
of ineligibility for probation was not overcome. He claims the court failed to give
significant weight to his age and lack of criminal sophistication. We conclude the trial
court did not abuse its discretion.
A.
Additional Background
The probation report stated defendant was ineligible for probation (§ 1203, subd.
(e)(9)) unless the court found unusual circumstances warranted a grant of probation.2
Although noting unusual circumstances existed (defendant was youthful: 15 and a half
years of age at the time of the offense, and he lacked a record of criminal conduct), the
probation officer opined such circumstances did not outweigh the seriousness of
defendant’s crime, especially in view of his youthfulness, which “add[ed] to the overall
2 Section 1203, subdivision (e), provides:
“(e) Except in unusual cases where the interests of justice would best be served if
the person is granted probation, probation shall not be granted to any of the following
persons: [¶] . . . [¶] (9) Any person who . . . intentionally set fire to, burned, or caused
the burning of, an inhabited structure or inhabited property in violation of subdivision (b)
of Section 451.”
4
seriousness of his actions.”3 With respect to remorse, the probation officer noted
defendant brought with him to the probation interview his written statements wherein he
3 Rule references are to the California Rules of Court. Rule 4.413 provides in
relevant part:
“(b) If the defendant comes under a statutory provision prohibiting probation
‘except in unusual cases where the interests of justice would best be served,’ or a
substantially equivalent provision, the court should apply the criteria in (c) to evaluate
whether the statutory limitation on probation is overcome; and if it is, the court should
then apply the criteria in rule 4.414 to decide whether to grant probation.
“(c) Facts showing unusual case
“The following facts may indicate the existence of an unusual case in which
probation may be granted if otherwise appropriate:
“(1) Facts relating to basis for limitation on probation
“A fact or circumstance indicating that the basis for the statutory limitation on
probation, although technically present, is not fully applicable to the case, including:
“(A) The fact or circumstance giving rise to the limitation on probation is, in this
case, substantially less serious than the circumstances typically present in other cases
involving the same probation limitation, and the defendant has no recent record of
committing similar crimes or crimes of violence; and
“(B) The current offense is less serious than a prior felony conviction that is the
cause of the limitation on probation, and the defendant has been free from incarceration
and serious violation of the law for a substantial time before the current offense.
“(2) Facts limiting defendant’s culpability
“A fact or circumstance not amounting to a defense, but reducing the defendant’s
culpability for the offense, including:
“(A) The defendant participated in the crime under circumstances of great
provocation, coercion, or duress not amounting to a defense, and the defendant has no
recent record of committing crimes of violence;
“(B) The crime was committed because of a mental condition not amounting to a
defense, and there is a high likelihood that the defendant would respond favorably to
mental health care and treatment that would be required as a condition of probation; and
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claimed to be remorseful. But when the probation officer told defendant during the
interview it was hard to believe his claim he did not intend to hurt anyone, defendant
became angry, clenched his jaw, tightened his lips and commented, “ ‘It’s funny how
everyone thinks that way.’ ” Defendant also told the probation officer he was upset with
the minor who turned him in to the police. The probation officer also recounted
defendant’s version of the incident. Defendant admitted that at first, he planned to
firebomb the victims’ car but there was no car parked in front when he arrived “the night
before.”
The prosecutor filed written opposition to a finding of probation eligibility. The
prosecutor argued rule 4.413(c)(1)(A) did not apply because defendant’s violent attack on
the victims was “sophisticated, intentional, methodical, pre-planned and organized” with
the goal of forcing the victims to leave town. Based on the psychological evaluation
performed for the defense, the prosecutor claimed “defendant clearly understood the
devastating effect” of the device he used. The prosecutor noted defendant “methodically
acquired the parts,” assembled the device, used it at night when the victims were most
vulnerable, and then fled to avoid detection. He thereafter initially denied involvement
when confronted by the deputies. The prosecutor argued defendant’s acts were not
substantially less serious than circumstances typically present in other arson cases.
With respect to the facts limiting defendant’s culpability as set forth in
rule 4.413(c)(2)(A) through (C), the prosecutor argued all had to apply because of the
conjunctive language and none did except (C), which related to defendant’s youthfulness
and his lack of a significant criminal record. With respect to (A), the prosecutor claimed
“defendant was not provoked, coerced, or under duress when he committed this violent
attack,” noting his motive was anger over an exchange of words a week before the arson.
“(C) The defendant is youthful or aged, and has no significant record of prior
criminal offenses.”
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With respect to (B), the prosecutor argued there was no evidence defendant
committed the offense because of a mental condition, citing the report of the defense
psychologist who concluded that “ ‘objective psychological testing shows the defendant
is NOT experiencing any severe, psychiatric level disturbance,’ ” defendant has “ ‘good
intellectual capabilities and understanding’ ” and he was simply “ ‘a troubled adolescent
who is struggling with adjustment and is using drugs and alcohol as self medication for
these difficulties.’ ”
With respect to (C), the prosecutor conceded defendant was youthful at the time of
the offense and had no prior criminal arrests or convictions. The prosecutor noted,
however, defendant had “committed prior assault and battery offenses that went
unprosecuted,” citing the defense psychologist’s report wherein defendant admitted
throwing light bulbs at “Brian” more than once and hit N.C. with a light bulb. The
prosecutor stated the “best interest” of defendant was not a factor for a finding under rule
4.413 and section 1203, subdivision (e)(9).
In his sentencing memorandum, defense counsel sought probation for defendant,
arguing the unusual circumstances finding was warranted based on his youthfulness at the
time of the crime, his lack of a prior criminal record, and his mental condition. Defense
counsel argued defendant’s “ridiculous overreaction to this perceived injustice directed at
him by the C[.] teenagers can only be described as the immature and rash acts of a 15
year old expressing poor judgment and not having the ability to control his anger, this one
time, due to his psychological inadequacies.” Defense counsel cited the psychological
evaluation by Dr. Roeder who described defendant as “ ‘experienc[ing] highly troubled
and unpredictable moods, impulsivity and the feelings of being cheated, misunderstood
and unappreciated.’ ” Defense counsel argued defendant would not get the “necessary
psychological treatment, education and direction to improve his life and make him a
better citizen once he gets out of prison several years from now.”
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At sentencing, the trial court stated it had read and considered the probation report
and the parties’ sentencing memorandums and attachments. The prosecutor reiterated his
argument that defendant was presumptively ineligible for probation and the court could
not make an unusual case finding based on the facts. With respect to the seriousness of
the offense, although the prosecutor agreed the fire was not a large fire, he disagreed such
fact was a mitigating factor. He argued it was “pure luck” the four victims were not
dead, noting the “Molotov Cocktail” did not explode and accelerate the fire as planned,
prepared, and intended by defendant because the device fell apart at the window. The
prosecutor also noted the victims had a burglar alarm that woke them up when the rock
broke the window. With respect to defendant’s remorse, the prosecutor contrasted
defendant’s expression of remorse in his written statement prepared before his interview
with the probation officer and his verbal and almost physically aggressive responses
during his interview about being “ratted” out by a friend, and indifferent attitude toward
having almost killed four people. The prosecutor “view[ed] that as a significant
aggravating factor” and commented that the probation officer was not convinced
defendant was not a danger to society.
Defense counsel argued the “only possible sentence you can give [defendant] is
probation” since the case was a “classic textbook unusual circumstance” one under rule
4.413. He argued defendant’s moral blameworthiness was reduced. He also argued
defendant was a juvenile offender who had lessened culpability and was less deserving of
the most severe punishment. Defense counsel claimed the probation report “focus[ed] on
vengeance, retribution and punishment.” Defense counsel suggested defendant, who was
the “sorriest person in this courtroom about what happened,” was most likely surprised
by the confrontation style of the probation officer who was “twice” defendant’s size and
had a “very dominant personality.” Defense counsel also claimed the prosecutor
incorrectly argued the best interests of justice could not be considered and every
subsection of rule 4.413 had to be met. Defense counsel argued rule 4.413 was not on its
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face exclusive of the circumstances that could be considered and the court could consider
any criteria reasonably related to the decision under rule 4.408. Defense counsel also
discussed other local cases where the youthful offenders were sentenced to juvenile hall
or county jail. Citing the psychological evaluation, defense counsel claimed defendant
could be rehabilitated because he had potential if given the treatment he needed.
In reply, the prosecutor argued the primary objective of sentencing was to protect
society and objected to the court considering the sentences imposed in other local cases
because the facts in those cases were not before the court. The prosecutor was concerned
with defendant’s reaction the next time someone challenged him.
“[G]iven the gravity of the issues of this case and the importance of the decision to
this particular Defendant,” the court continued the sentencing hearing to fully consider
the arguments and cases cited.
At the continued sentencing hearing, the trial court recognized defendant was
youthful (“15 when this happened, and he is now 16”) and defendant had no prior record
or had an insignificant record of criminal conduct. The court determined the probation
limiter was not overcome. In discussing the seriousness of the offense, the court cited the
psychologist’s evaluation that recounted defendant’s description of the effects of a
“Molotov Cocktail” as “more like accelerated arson”: “ ‘You have a big ball of fire’ ”
similar to a “ ‘fire bomb’ ” that does not explode but the “glass breaks and the fire goes
everywhere.” Having described the crime in detail, the court found the “crime was
carefully planned out and executed” and was a “serious matter.” The court considered
and rejected any claim the offense occurred under great provocation, coercion, or duress,
commenting that instead of complaining about the teenage victims to school officials, the
victims’ parents, or defendant’s parents, defendant told the psychologist he could not
“really think of any other way” to address his perception of being ostracized or bullied by
the teenage victims other than the course he chose. The court found defendant was not
suffering from a mental condition amounting to a defense, citing the psychological
9
evaluation and determining defendant had “good intellectual capabilities” and was “not
experiencing any severe psychiatric level disturbance,” but was simply a “troubled”
youth who was “struggling with his adjustment” and difficulties in his family
relationships by using “drugs and alcohol.” The court noted although there was “some
evidence of remorse” there was also the fact defendant initially denied involvement and
was displeased with friends who had “ratted him out.” The court also noted that when
asked about his future plans, defendant expressed no concerns about the victims.
The trial court then imposed the state prison sentence for the underlying offense
and struck the punishment for the enhancement, citing, in part, defendant’s youth and
lack of a record.
B.
Analysis
Defendant contends the trial court abused its discretion in failing to find unusual
circumstances, arguing such circumstances are present here. He stresses his youth,
pointing out he was 15 at the time of the arson, his lack of a criminal record, his
compliance with pretrial release, and his mental health problems, which he argues, the
court only mentioned briefly.
“Under rule 4.413, the existence of any of the listed facts does not necessarily
establish an unusual case; rather, those facts merely ‘may indicate the existence of an
unusual case.’ [Citation.] This language indicates the provision ‘is permissive, not
mandatory.’ [Citation.] ‘[T]he trial court may but is not required to find the case unusual
if the relevant criterion is met under each of the subdivisions.’ [Citation.]” (People v.
Stuart (2007) 156 Cal.App.4th 165, 178.)
The trial court’s finding as to whether the case is unusual is reviewed for an abuse
of discretion as is a trial court’s decision to grant or deny probation. (People v. Superior
Court (Du) (1992) 5 Cal.App.4th 822, 831; People v. Cazares (1987) 190 Cal.App.3d
833, 837.) “ ‘An order denying probation will not be reversed in the absence of a clear
10
abuse of discretion. [Citation.] In reviewing the matter on appeal, a trial court is
presumed to have acted to achieve legitimate sentencing objectives in the absence of a
clear showing the sentencing decision was irrational or arbitrary. [Citations.]’
[Citation.]” (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.)
Here, the trial court noted defendant’s youth and insignificant criminal conduct but
found the nature, seriousness, and circumstances of the crime warranted a prison
commitment. Defendant complains the trial court did not consider recent cases
discussing a minor’s reduced level of culpability, arguing his reactions were those one
would expect from a minor. Defendant argues the court pointed to these factors but did
not weigh them. We disagree. The trial court continued the sentencing hearing after
argument to fully consider the claims and cases cited. The court’s statements on the
record reflect that it did consider and weigh his arguments but rejected them.
“ ‘A trial court may minimize or even entirely disregard mitigating factors without
stating its reasons.’ [Citation.] Further, unless the record affirmatively reflects
otherwise, the trial court will be deemed to have considered the relevant criteria, such as
mitigating circumstances, enumerated in the sentencing rules. [Citation.]” (People v.
Zamora (1991) 230 Cal.App.3d 1627, 1637.) “We will not interfere with the trial court’s
exercise of discretion ‘when it has considered all facts bearing on the offense and the
defendant to be sentenced.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899,
910.)
The exercise of discretion means different courts may reasonably arrive at
“different decisions, even on the same facts.” (People v. Garcia (1995) 32 Cal.App.4th
1756, 1771; People v. Littleton (1992) 7 Cal.App.4th 906, 911, fn. 7.) Defendant has not
demonstrated that the trial court abused its discretion in arriving at its decision that the
presumption of probation ineligibility was not overcome.
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II
Presentence Custody Credit
Defendant brings three challenges to the trial court’s award of presentence custody
credit. He argues: (a) the trial court erred and violated his right to due process by
limiting accrual of conduct credit to 15 percent under section 2933.1 because he pled
guilty to arson of an inhabited structure “as a serious, rather than violent, felony”; (b) the
2011 amendments to section 4019 eliminated the 15 percent conduct credit limitation of
section 2933.1; and (c) he is entitled to presentence custody credit for time spent in
custody after he was sentenced, but before the restitution order was entered. We address
and reject each of these contentions below. We also conclude defendant was awarded too
many -- not too few -- days of presentence custody credit. We therefore modify the
judgment to award the correct amount of credit and affirm the modified judgment.
A.
Section 2933.1’s Conduct Credit Limitation Applies to Defendant
“Persons who remain in custody prior to sentencing receive credit against their
prison terms for all of those days spent in custody prior to sentencing, so long as the
presentence custody is attributable to the conduct that led to the conviction. (§ 2900.5.)
This form of credit ordinarily is referred to as credit for time served. [¶] Additional
credit may be earned, based upon the defendant’s work and good conduct during
presentence incarceration. (§§ 2900.5, subd. (a), 4019.) Such presentence credit is
referred to as conduct credit.” (People v. Duff (2010) 50 Cal.4th 787, 793.)
Section 2933.1 limits presentence conduct credit to “15 percent of the actual
period of confinement” for “any person who is convicted of a felony offense listed in
subdivision (c) of Section 667.5 . . . .” (§ 2933.1, subds. (a) & (c).) Section 667.5,
subdivision (c), contains 23 paragraphs defining the term “violent felony,” paragraph (10)
of which lists: “Arson, in violation of subdivision (a) or (b) of Section 451.” (§ 667.5,
subd. (c)(10).)
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Defendant pled no contest to one count of arson of an inhabited structure, in
violation of section 451, subdivision (b), subjecting him to the 15 percent limitation of
section 2933.1. Nevertheless, he argues this limitation does not apply because (1) “arson
can be either a violent felony pursuant to section 667.5, subdivision (c)(10) or a serious
felony pursuant to section 1192.7, subdivision (c)(14),” (2) “in the charging document,
the prosecutor alleged the arson was a serious felony,” and (3) the plea form he signed
“listed the section 451, subdivision (b) charge as a serious felony.” We are not
persuaded. While defendant is correct that arson, in all its forms, is a serious felony (§
1192.7, subd. (c)(14)), the particular form of arson to which he pled no contest, i.e., arson
of an inhabited structure, is also a violent felony (§ 667.5, subd. (c)(10)). Nor does it
matter that the charging document listed arson as a serious felony. This is because “facts
invoked to limit credits need not be formally pled or proved.” (People v. Lara (2012) 54
Cal.4th 896, 902.) Finally, while a plea must be “knowing, intelligent, and voluntary,”
which “presupposes the defendant knows all the ‘direct consequences’ of his [or her]
plea,” a defendant need not be advised of “ ‘collateral consequences,’ ” including
“limitations on one’s ability to earn conduct and work credits.” (People v. Aquirre
(2011) 199 Cal.App.4th 525, 528.) Thus, defendant pled no contest to a violent felony,
subjecting him to the 15 percent limitation of section 2933.1, regardless of the fact the
charging document and plea form did not formally notify him that arson of an inhabited
structure is such a felony.
Defendant also argues his right to due process was violated. Not so. Indeed, a
similar argument was rejected in People v. Fitzgerald (1997) 59 Cal.App.4th 932, cited
with approval by our Supreme Court in People v. Lara, supra, 54 Cal.4th 896. There, the
defendant was charged with five violent felonies and pled guilty to one such felony.
(Fitzgerald, supra, 59 Cal.App.4th at p. 935.) However, the charging document “did not
apprise him of the possibility he would only receive 15 percent of presentence conduct
credits.” (Id. at p. 936.) Disagreeing with the defendant’s claim that limiting the accrual
13
of such credits to 15 percent violated due process, the Court of Appeal explained:
“ ‘[T]he purpose of the charging document is to provide the defendant with notice of the
offense charged. (§ 952.) The charges thus must contain in substance a statement that
the accused has committed some public offense, and may be phrased in the words of the
enactment describing the offense or in any other words sufficient to afford notice to the
accused of the offense charged, so that he or she may have a reasonable opportunity to
prepare and present a defense.’ [Citations.]” (Ibid.) The court explained the information
filed in the case complied with the foregoing rule and concluded: “All of the charged sex
offenses are violent felonies listed in section 667.5. Hence, charging defendant with five
violent felonies was sufficient to constitutionally inform him of the nature of the charges
including the 15 percent limitation on presentence conduct credits.” (Id. at pp. 936-937.)
Here too, defendant was charged with an offense listed in section 667.5 as a
violent felony and pled no contest to committing this violent felony. He does not claim
the charging document failed to adequately advise him of the nature of the crime and
there is no constitutional requirement that it also list the crime as a violent felony subject
to the 15 percent limitation of section 2933.1. Nor is there any constitutional requirement
that the plea form list the crime as a violent felony subject to the 15 percent limitation.
(See People v. Aquirre, supra, 199 Cal.App.4th at p. 528.) We must therefore reject
defendant’s assertion that due process requires us to conclude he pled “to arson as a
serious, rather than violent, felony.”
In any event, even if we were to conclude due process required defendant to be
specifically informed that arson of an inhabited structure is a violent felony, he was so
informed during the plea colloquy. At the entry of plea hearing, the prosecutor set forth
the plea agreement: “Your Honor, the People have -- we’ve offered to -- basically a plea
to Count One, which is a violent felony, arson of a[n] inhabited structure which has an
exposure of three, five or eight years. [¶] And also, we ask that the defendant admit the
special allegation which is pursuant to . . . Section 451.1, which is the use of a device to
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accelerate the fire, which has a triad of three, four, five. We have made no promises in
this case.” (Italics added.) Defense counsel did not object when the prosecutor described
the offense as a violent felony. The prosecutor noted defendant’s exposure was 13 years.
Defense counsel stated the plea agreement was “spelt out on the plea form.” The court
reviewed the plea form with defendant, obtained a factual basis for the plea, and then
accepted defendant’s plea. After the court accepted defendant’s admission of the
enhancement allegation, the prosecutor asked for remand because defendant stood
“convicted of a violent felony and he’s pending sentencing.” (Italics added.) In opposing
remand, defense counsel did not object to the prosecutor’s description of the offense as a
violent felony. Thus, defendant was notified arson of an inhabited structure qualified as a
violent felony.
B.
The 2011 Amendments to Section 4019 Did Not Eliminate Section 2933.1’s
Conduct Credit Limitation
Defendant claims he is entitled to day-for-day conduct credit under the 2011
Realignment Act, arguing section 4019 as amended eliminated the exclusions in
section 2933.1. We disagree.
As the prosecutor correctly noted at sentencing, the Realignment Act did not affect
the 15 percent limit in section 2933.1 that was not repealed. (Stats. 2011, ch. 15, § 482.)
Our colleagues at the Second Appellate District explained in People v. Rosales (2014)
222 Cal.App.4th 1254 (Rosales): “The October 1, 2011 adoption of section 4019,
subdivisions (b), (c) and (f) was not intended to repeal the less generous presentence
conduct provisions of section 2933.1, subdivision (c). Section 4019 makes no reference
to section 2933.1, subdivision (c). Therefore, any repeal necessarily would have been by
implication. Repeals by implication are disfavored. [Citations.] Our Supreme Court has
explained: ‘Absent an express declaration of legislative intent, we will find an implied
repeal “only when there is no rational basis for harmonizing the two potentially
15
conflicting statutes [citation], and the statutes are ‘irreconcilable, clearly repugnant, and
so inconsistent that the two cannot have concurrent operation.’ ” ’ [Citation.] [¶] First,
there is a rational basis for harmonizing sections 4019, subdivisions (b), (c) and (f) and
2933.1, subdivision (c). Violent felonies are more serious and logically warrant greater
periods of incarceration. Nonviolent felonies, some which result in county jail sentences
pursuant to section 1170, subdivision (h)(2) and involve less serious crimes, result in
greater credits. Second, the two presentence conduct credits provisions are not
irreconcilable, clearly repugnant and so inconsistent that the two cannot operate
concurrently. There are two distinct presentence conduct credits at issue here. The first
is for offenders who do not commit violent felonies. The second is for offenders who
commit violent felonies. These two sentencing schemes operate concurrently depending
on whether the offense is specified in section 667.5, subdivision (c). (We need not
discuss section 2933.2, subdivision (c) which prohibits presentence credits for
murderers.) Thus, section 2933.1, subdivision (c) has not been expressly or impliedly
repealed.” (Id. at p. 1262.)
Defendant argues this court is not bound by Rosales. While true, we find its
reasoning persuasive and will follow it. Because section 2933.1 was not repealed by
amended section 4019, and because defendant was convicted of a violent felony, the trial
court properly limited his accrual of presentence conduct credit to 15 percent under
section 2933.1.
C.
Defendant is Not Entitled to Presentence Custody Credit for Post-sentence Custody
We also reject defendant’s claim that he is entitled to presentence custody credit
for time spent in custody after he was sentenced, but before the restitution order was
entered.
On June 7, 2013, the trial court imposed the prison term but continued the matter
to June 24, 2013, to determine the custody credit issue after briefing (defendant’s
16
attorney claimed defendant was entitled to day-for-day credit “even if a strike offense”)
as well as the issue of defendant’s housing while in prison. The court reserved
jurisdiction on the issue of victim restitution.
On June 24, 2013, the trial court awarded custody credits and ordered defendant
housed in the juvenile detention facility, remanding defendant and ordering the sheriff to
transport defendant when directed by the Division of Juvenile Justice. Defense counsel
requested that defendant remain in the county facilities until the court decided the
restitution issue. The prosecutor had no objection and the court so ordered provided it
did not violate “some policy.” The court advised defendant of his right to appeal.
On January 8, 2014, the parties entered a stipulation concerning restitution.
Defendant appeared as a sentenced prisoner. In response to defense counsel’s request for
updated credits, the trial court denied additional presentence credits.
We reject defendant’s claim of entitlement to presentence custody credits for time
spent in custody after June 24, 2013, to January 8, 2014. Defendant was serving time as
a sentenced prisoner.
D.
Error in Calculating Presentence Custody Credit
We note the trial court made an addition error that led to an award of too many
days of presentence custody credit. Defendant was entitled to credit for actual days from
November 8, 2012, to March 4, 2013, and April 24, 2013, to June 24, 2013, which totals
179 days, not 189 days as calculated by the trial court. Fifteen percent of 179 days is 26
days of conduct credits under section 2933.1. The court properly ordered credit for actual
days of pretrial release or 51 days. Defendant’s presentence custody credit total is 256
days. We order the judgment modified accordingly.
DISPOSITION
The judgment is modified to provide for 179 actual days, 51 days of pretrial
release, and 26 conduct days for a total of 256 days of presentence custody credits. The
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trial court is ordered to prepare an amended abstract of judgment accordingly and to
forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
ROBIE , J.
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