P. v. Casarez CA6 ( 2013 )

Filed 5/8/13 P. v. Casarez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038478
(San Benito County
Plaintiff and Respondent, Super. Ct. Nos. CR-11-01168,
CR-12-00027)
v.
PAUL STEVE CASAREZ,
Defendant and Appellant.
Following pleas of no contest, defendant Paul Steve Casarez was sentenced at the
same time in multiple cases. On appeal, defendant challenges the upper term imposed on
his conviction of possession of a controlled substance following revocation of deferred
entry of judgment (DEJ) in Case No. CR-11-01168. He also disputes the court's
calculation of presentence credit in Case Nos. CR-11-01168 and CR-12-00027.1
1
Penal Code section 1237.1 provides: "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." Defendant does not
suggest that he has complied with this statutory requirement but he argues that we may
reach the issue of presentence custody credit because it is not the only issue on appeal.
The People correctly agree. (See People v. Acosta (1996) 48 Cal.App.4th 411, 420-428.)
1
We conclude that the trial court did not err in imposing the upper term in Case No.
CR-11-01168. We agree, however, that defendant is entitled to additional presentence
credit. Accordingly, we modify the judgment and affirm the judgment as modified.
I
Procedural History
Defendant was arrested on May 18, 2011 for possession of cocaine. He was in
San Benito County jail from May 18, 2011 to May 19, 2011.
On July 22, 2011, a complaint (Case No. CR-11-01168) was filed in San Benito
County Superior Court charging defendant with possessing a controlled substance
(cocaine) on or about May 18, 2011 in violation of Health and Safety Code section
11350, subdivision (a).
On August 16, 2011, defendant appeared for arraignment. He was referred to the
probation department to be evaluated for the Deferred Entry of Judgment Program
(DEJP). In September 7, 2011, the Probation Officer's Report indicated that defendant
was eligible for the program and it recommended that defendant be admitted to the
program.2 Defendant promised to appear for the next hearing date on September 15,
2011.
Defendant did not appear on September 15, 2011. The minute order indicates bail
was set at $15,000. A felony bench warrant was issued, reflecting that bail was fixed at
$15,000. The warrant required a mandatory appearance and admission to bail.3
2
"Pursuant to [Penal Code] section 1000, a defendant who has been charged with
specified drug offenses and has not committed a crime of violence or threatened violence
may undergo a drug education and treatment program in lieu of undergoing a criminal
prosecution, and upon satisfactory completion may obtain dismissal of the criminal
charges. [Citation.]" (People v. Canty (2004) 32 Cal.4th 1266, 1285.)
3
San Benito County's Bail Schedule, effective July 1, 2011, indicates the following
jail policy regarding release on an inmate's own recognizance: "No inmate shall be
released OR when the warrant states 'NO OR, Body Only, not to be released without
2
Defendant was in county jail on December 13, 2011. The same day, a hearing was
held on the warrant return. At the hearing, the trial court set the next hearing date and
released defendant on his own recognizance (O.R.) in that case.
On December 16, 2011, defendant pleaded guilty to the possession charge. The
court issued an order granting DEJ pursuant to Penal Code section 1000 et seq. 4 He was
admitted to the DEJP.
On January 7, 2012, defendant was arrested for offenses committed the previous
day. He apparently remained in county jail from that date forward through the date of
sentencing.
On January 10, 2012, a complaint (Case No. CR-12-00027) was filed in San
Benito County Superior Court charging defendant with committing the following
offenses on or about January 6, 2012: assault with a deadly weapon in violation of section
245, subdivision (a)(1) (count one), attempted second degree robbery in violation of
section 211 (count two), possession of a firearm in violation of section 29800,
subdivision (a)(1) (count three), carrying a loaded firearm in violation of section 25850,
subdivision (c)(1) (count four), and possession of a firearm in a public place in violation
of section 25300, subdivision (a) (count five). Defendant entered a not guilty plea. Bail
was set at $45,000.
posting bail' or similar language."
( [as of Jan. 29,
2012].) We take judicial notice of this policy (Evid. Code, §§ 452, subd. (c) ["Official
acts of the . . . executive . . . departments . . . of any state of the United States"], 459,
subd. (a) [judicial notice by reviewing court]; see Cal. Const., art. XI, § 1, subd. (a)
[counties are legal subdivisions of the State]; Gov. Code, § 23002 [same]), see also
Marek v. Napa Community Redevelopment Agency (1988) 46 Cal.3d 1070, 1076, fn. 5
[county agency constituted state entity for purposes of judicial notice].)
4
All further statutory references are to the Penal Code unless otherwise stated.
3
A notice, filed by the San Benito County Probation Department on January 13,
2012, directed defendant to appear on January 18, 2012 and show cause why the DEJ
order in Case No. CR-11-01168 should not be revoked. Defendant's alleged violation of
the DEJP was his failure to obey all laws.
The January 18, 2012 minute order in Case No. CR-11-01168 reflects that the
court summarily revoked DEJ and continued the matter until January 26, 2012 for a
hearing on the alleged violation of the DEJP.5 The box for bail was checked and "body
only" was written in the space for the amount of bail. That minute order also indicated
that defendant was released on O.R. in Case No. CR-12-00027.
The January 24, 2012 minute order in Case Number CR-12-00027 indicated
defendant was released on O.R. but he continued "in custody on other charges." The next
hearing was set for January 26, 2012.
On January 26, 2012, in Case Number CR-11-01168, the court rescheduled the
hearing on the alleged violation of the DEJP for February 16, 2012. Again, the box for
bail was checked and "body only" was written in space for the amount of bail.
5
Section 1000.3 provides in pertinent part: "If it appears to the prosecuting
attorney, the court, or the probation department that the defendant is performing
unsatisfactorily in the assigned program . . . , or the defendant is convicted of a felony, or
the defendant has engaged in criminal conduct rendering him or her unsuitable for
deferred entry of judgment, the prosecuting attorney, the court on its own, or the
probation department may make a motion for entry of judgment. [¶] After notice to the
defendant, the court shall hold a hearing to determine whether judgment should be
entered. [¶] If the court finds that the defendant is not performing satisfactorily in the
assigned program . . . , or the court finds that the defendant has been convicted of a crime
as indicated above, or that the defendant has engaged in criminal conduct rendering him
or her unsuitable for deferred entry of judgment, the court shall render a finding of guilt
to the charge or charges pled, enter judgment, and schedule a sentencing hearing as
otherwise provided in this code."
4
The January 26, 2012 minute order in Case Number CR-12-00027 reflected that
defendant was released on O.R. in that case but he continued "in custody on other
charges." The next hearing was set for February 16, 2012.
On February 16, 2012, the next hearing was scheduled for February 23, 2012 and
the hearing on the alleged violation of the DEJP in Case Number CR-11-01168 was reset
for March 2, 2012. On February 23, 2012, the hearing on March 2, 2012 was confirmed.
On March 2, 2012, the next hearing was scheduled for March 15, 2012 and the hearing
on the alleged violation of the DEJP was reset for March 23, 2012. On each minute order,
the box for bail was checked and "body only" was written in the space for the amount of
bail.
Meanwhile in Case No CR-12-00027, the preliminary examination initially was
first scheduled to be held on March 2, 2012 but eventually it was rescheduled to
March 23, 2012. Minute orders for February 16, 2012, February 23, 2012, and March 2,
2012 indicated that defendant was released on O.R. in that case and "in custody on other
charges."
On March 15, 2012, an amended complaint was filed in Case Number CR-12-
00027. Defendant appeared and entered a not guilty plea. The minute order again
indicated that defendant was released on O.R. in that case and "in custody on other
charges."
Also on March 15, 2012, the hearing on the alleged violation of the DEJP was
confirmed for March 23, 2012 in Case No. CR-11-01168. The box for bail was checked
and "body only" was written in the space for the amount of bail on the minute order.
On March 23, 2012, another amended complaint was filed in Case No. CR-12-
00027. It charged defendant with committing seven offenses on or about January 6,
2012: attempted carjacking (§§ 215, subd. (a), 664) (count one); attempted second degree
robbery (§ 211) (count two); active participation in a criminal street gang (§ 186.22,
5
subd. (a)) (count three); exhibiting a firearm (§ 417, subd. (a)(2)(A)) (count four); felon
in possession of a firearm (§ 29800) (count five); felon carrying a loaded firearm
(§ 25850, subd. (c)(1)) (count six); possession of a firearm in a public place (§ 25300,
subd. (a)) (count seven). With respect to counts one (attempted carjacking) and two
(attempted second degree robbery), the amended complaint alleged a gang enhancement
(§ 186.22, subd. (b)(1)(C)), an enhancement for carrying a firearm in the commission of a
street gang crime (§ 12021.5, subd. (a)), and an enhancement for personal use of a
firearm (§ 12022.5, subd. (a)). With respect to count three (active participation in a
criminal street gang), it alleged enhancements for carrying a firearm in the commission of
a street gang crime (§ 12021.5, subd. (a)) and personal use of a firearm (§ 12022.5, subd.
(a)). With respect to count four (exhibiting a firearm), it alleged a gang enhancement
(§ 186.22, subd. (d)) and an enhancement for carrying a firearm in the commission of a
street gang crime (§ 12021.5, subd. (a)). With respect to counts five (felon in possession
of a firearm), six (felon carrying a loaded firearm in a public place), and seven
(possession of a firearm in a public place), the amended complaint alleged a gang
enhancement pursuant to section 186.22, subdivision (b)(1)(A).
The March 23, 2012 minute order in Case No. CR-12-00027 shows that defendant
waived a preliminary examination, the second amended complaint was deemed an
information, and defendant waived time and entered not guilty pleas. It indicated that
defendant was released on O.R. in that case but he was "in custody on other charges."
Trial setting was scheduled for April 19, 2012.
Also on March 23, 2012 in Case No. CR-11-01168, the hearing on the alleged
violation of the DEJP was reset for April 19, 2012. On April 19, 2012, the hearing
regarding the alleged violation of the DEJP was reset for May 3, 2012. On each minute
order, the box for bail was checked and "body only" was written in the space for the
amount of bail.
6
On April 19, 2012, trial setting in in Case No. CR-12-00027 was rescheduled for
May 3, 2012. The minute order indicated that defendant was released on O.R. in that
case but he was "in custody on other charges."
Finally on May 3, 2012, in Case No. CR-12-00027, defendant pleaded no contest
to felony attempted carjacking (§§ 215, 664) (count one) and admitted the enhancement
allegation that he had carried a firearm in connection with a street-gang crime (§ 12021.5,
subd. (a)) and he pleaded no contest to misdemeanor active participation in a criminal
street gang (§ 186.22, subd. (a) [count three reduced from felony]). The other special
allegations concerning counts one and three were stricken and the remaining charges
were dismissed. In a third case, Case No. CR-12-00103, defendant pleaded no contest to
misdemeanor false personation (§ 529), a crime originally charged as a felony.6
Defendant admitted violating DEJP's conditions in Case Number CR-11-01168 based on
the crimes to which he pleaded in Case Nos. CR-12-00027 and CR-12-00103.
Also on May 3, 2012, the court scheduled the three matters for sentencing on
June 7, 2012. Defendant was referred to the probation department for presentencing
reports. The record indicates that defendant was released on O.R. in Case Nos. CR-12-
00027 and CR-12-00103 but he remained "in custody on other charges." The record
reflects a "body-only hold" continued in Case No. CR-11-01168.
According to the probation reports, the drug offense, to which defendant pleaded
in Case No. CR-11-01168, came to light when an officer approached two males that he
believed might be burglarizing a parked truck on May 18, 2011. A plastic baggie
containing .54 grams of a white substance, which latter tested positive for cocaine, was
found in the gutter and defendant admitted the "coke" was his. The later crimes to which
defendant pleaded in Case No. CR-12-00027 occurred during what appeared to be an
6
This court has no further information about Case No. CR-12-00103.
7
attempted robbery at a 7-Eleven store on January 6, 2012. One of the suspects, who was
described as wearing a red bandana on his face and carrying a pistol and later identified
as defendant by a female victim, demanded car keys from a male victim outside the store.
The probation report for Case No. CR-12-00027 (attempted carjacking, etc.)
indicated defendant had been in county jail from January 10, 2012 (date of arraignment
on original complaint) through and including January 18, 2012 (release on O.R. in that
case) for a total of nine actual days served. It indicated that defendant was entitled to
eight days of conduct credit under section 4019.
The probation report for Case No. CR-11-01168 (possession of controlled
substance) reported defendant had been in county jail on May 18, 2011 (date of arrest)
and May 19, 2011, December 13, 2011 (warrant return), from January 7, 2012 (date of
arrest on new charges) through and including January 9, 2012 (day before arraignment on
new charges in Case No. CR-12-00027), and from January 19, 2012 (day after summary
revocation of DEJ) through and including June 7, 2012 (the date of sentencing) for a total
of 147 days. It indicated that defendant was entitled to only 22 days of conduct credit, 15
percent of the actual days served based on section 2933.1.
Defendant remained in custody until he was sentenced on June 7, 2012.
On June 7, 2012, the court sentenced defendant as follows. In Case No. CR-12-
00027, the court imposed an upper prison term of four and a half years on count one plus
a two-year prison enhancement pursuant to section 12021.5, for a total prison term of six
and a half years. The court also imposed a concurrent one-year jail term on count three in
that case. In Case No. CR-11-01168, the court imposed an upper three-year prison term
to be served concurrently with the sentence imposed in Case No. CR-12-00027. At the
sentencing hearing, defense counsel argued that the circumstances at the time of
defendant's plea did not justify imposition of the upper term. In Case No. CR-12-00103,
8
the court sentenced defendant to a one-year jail term for misdemeanor false personation
to be served concurrently with the state prison sentences imposed in the other two cases.
In Case No. CR-12-00027 (attempted carjacking, etc.), the court awarded credit
for nine actual days and eight days conduct credit (§ 4019) for a total of 17 days credit for
time served as recommended by the probation report. In Case Number CR-11-01168
(possession of a controlled substance), the court awarded credit for 147 actual days and
29 days conduct credit for a total of 176 days credit for time served. It indicated that it
was applying a 20 percent limitation on conduct credit.
Defendant was remanded to the custody of the sheriff for delivery to the
Department of Corrections and Rehabilitation.
II
Discussion
A. Upper Term in Case Number CR-11-01168
The sentencing court explained that it was imposing the upper term on defendant's
conviction of possession of a controlled substance in Case Number CR-11-01168 "based
upon his total behavior, which indicates that he's a serious danger to society." (See
California Rules of Court, rule 4.421(b)(1)7 [circumstances in aggravation include: "The
defendant has engaged in violent conduct that indicates a serious danger to society"].)
Defendant asserts that the trial court was not permitted to consider his behavior
following his guilty plea and therefore the court had no valid basis for sentencing him to
the upper term. In making this argument, he analogizes DEJ to probation and relies on
rule 4.435(b)(1) and People v. Colley (1980) 113 Cal.App.3d 870. Respondent agrees
with defendant's analysis. This court, however, is not persuaded.
7
All further references to rules are to the California Rules of Court.
9
Subdivision (b) of rule 4.435, which concerns sentencing on revocation of
probation, provides in pertinent part: "On revocation and termination of probation under
section 1203.2, when the sentencing judge determines that the defendant will be
committed to prison: [¶] (1) If the imposition of sentence was previously suspended, the
judge must impose judgment and sentence after considering any findings previously
made and hearing and determining the matters enumerated in rule 4.433(c). [¶] The
length of the sentence must be based on circumstances existing at the time probation was
granted, and subsequent events may not be considered in selecting the base term or in
deciding whether to strike the additional punishment for enhancements charged and
found." (Italics added.)
The Advisory Committee Comment following the rule states: "The restriction of
subdivision (b)(1) [of Rule 4.435] is based on In re Rodriguez (1975) 14 Cal.3d 639, 652:
'[T]he primary term must reflect the circumstances existing at the time of the offense.' "
(Advisory Com. com., 23, Pt. 1B West's Ann. Code, Court Rules (2006 ed.) foll. Rule
4.435, p. 318.) As will be discussed, the In re Rodriguez decision addressed issues that
arose in the context of indeterminate, rather than determinate, sentencing.
In People v. Colley, supra, 113 Cal.App.3d 870, a determinate sentencing case
now cited by defendant, defendant Colley was convicted by plea of first degree burglary
and the trial court granted probation. (Id. at p. 871.) In January 1978, the trial court
found the defendant had violated probation and sentenced him to the middle prison term.
(Ibid.) The trial court then recalled the sentence pursuant to former section 1170,
subdivision (d), and again granted probation. (Id. at pp. 871–872.) After defendant
Colley was subsequently convicted of petty theft, the trial court again revoked probation
but this time sentenced the defendant to the upper term. (Id. at p. 872.)
The appellate court in Colley concluded that imposition of the upper term
following the second revocation of probation violated former rule 435(b)(1) (now rule
10
4.435(b)(1)) and In re Rodriguez, supra, 14 Cal.3d 639 because it was based upon the
defendant's poor performance on probation. (Colley, supra, 113 Cal.App.3d at p. 873.) It
indicated that the selection of the appropriate term was required to be "predicated upon
appellant's record prior to the original grant of probation" and concluded that the trial
court's choice of the upper term was impliedly not based on that record. (Id. at p. 874.)
The appellate court reduced the sentence to the middle term and affirmed the judgment as
modified. (Ibid.)
Defendant has not convinced us that rule 4.435 must or should be followed in
sentencing on revocation of DEJ for a number of reasons. First, by its terms, rule 4.435
applies to only sentencing on revocation of probation, not DEJ. Second, People v.
Colley, supra, 113 Cal.App.3d 870 involved the recall of a sentence and it has been
criticized on other grounds. Former section 1170, subdivision (d), which was in effect in
Colley, required, as does the current version, that the new sentence, if any, upon recall be
no greater than the initial sentence. (Stats. 1977, ch. 165, § 15, pp. 648-649.) That initial
sentence in Colley was the middle term. (People v. Colley, supra, 113 Cal.App.3d 871.)
In People v. Harris (1990) 226 Cal.App.3d 141 (review den. Mar. 13, 1991), the
First District Court of Appeal agreed that in In re Rodriguez, "the inspiration for [former]
rule 435(b)(1), may have been partly undercut by recent Supreme Court precedent, at
least in a determinate-sentence context." (Id. at p. 146.) It held that "when a court
reinstates probation under the circumstances present here, a later sentence upon
revocation of the reinstated probation may take into account events occurring between the
original grant and the reinstatement. [¶] To hold otherwise would seriously impede a
court's flexibility to deal effectively with the offender who, granted the 'clemency and
grace' of probation in the hopes of achieving rehabilitation (People v. Rodriguez (1990)
51 Cal.3d 437, 445), proves unable to abide by the conditions of that liberty the first time
11
out. Allowing an offender to fail multiple grants of probation with absolute impunity
under [former] rule 435(b)(1) would discourage a court from ever reinstating probation."
(Id. at p. 147.)
Third, the statement in In re Rodriguez from which the limitation of rule
4.435(b)(1) was derived had nothing to do with selecting a determinate term of
punishment but rather arose in the context of indeterminate sentencing. "Before July 1,
1977, California law provided for indeterminate sentencing. Under that sentencing
scheme, penal statutes specified a minimum and a maximum sentence for felonies, often
ranging broadly from as little as one year in prison to imprisonment for life. [Citation.]
A trial court would simply sentence a defendant to prison for 'the term prescribed by law,'
while the actual length of a defendant's term, within the statutory maximum and
minimum, was determined by the Adult Authority. [Citations.]" (People v. Jefferson
(1999) 21 Cal.4th 86, 94.)
In In re Rodriguez, supra, 14 Cal.3d 639, a habeas petitioner, who had served 22
years of an indeterminate sentence of one year to life for violation of former Penal Code
section 288, argued that "the statutory life maximum term" was unconstitutionally
"disproportionate to the offense" and the Adult Authority had abused its discretion "in
failing to fix a lesser term than the statutory life maximum term . . . ." (Id. at pp. 642-
643.) The Supreme Court concluded that the penalty provision of former section 288 was
constitutional but the Adult Authority had "failed to properly interpret and administer the
Indeterminate Sentence Law" and petitioner was "entitled to be discharged from his
term." (Id. at p. 643.)
With regard to the responsibility of the Adult Authority to fix the term of the
offense, the Supreme Court stated: "This basic term-fixing responsibility of the
Authority is independent of the Authority's power to grant parole and of its discretionary
12
power to later reduce the term thus fixed, which fixed, constitutionally proportionate,
term we shall hereafter refer to as the 'primary term.' The Authority's power to grant
parole and to later reduce the primary term remain unaffected. That power enables the
Authority to give recognition to a prisoner's good conduct in prison, his efforts toward
rehabilitation, and his readiness to lead a crime-free life in society. On the other hand,
this discretionary power also permits the Authority to retain a prisoner for the full
primary term if his release might pose a danger to society [citation] and to revoke parole,
rescind an unexecuted grant of parole and refix a reduced term at a greater number of
years up to the primary term if the prisoner or parolee engages in conduct which affords
cause to believe he cannot or will not conform to the conditions of parole, or would pose
a danger to society if free. [Citations.] These considerations, however, are based in large
measure on occurrences subsequent to the commission of the offense. [¶] Conversely,
the primary term must reflect the circumstances existing at the time of the offense. Both
the Eighth Amendment and article I, section 17, proscribe punishment which is
disproportionate to the particular offense." (Id. at p. 652.) The Supreme Court held that
"[b]ecause [the Adult Authority] has not distinguished its responsibility to fix the primary
term of prisoners subject to the Indeterminate Sentence Law from its parole-granting
function, and because it has determined that petitioner is not ready for parole, it has either
failed to fulfill its obligation to fix petitioner's term at a number of years proportionate to
his offense, or, having impliedly fixed it at life [citation], has imposed excessive
punishment on him." (Id. at p. 653, fn. omitted.)
The California Supreme Court's statements in In re Rodriguez (1975) 14 Cal.3d
639 must be understood in the context in which they were made. " 'It is axiomatic that
language in a judicial opinion is to be understood in accordance with the facts and issues
before the court. An opinion is not authority for propositions not considered.' (Chevron
13
U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 . . . .)"
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.)
Our fourth reason for rejecting defendant's contentions is based on determinate
sentencing law and rules, which contemplate that appropriate term of imprisonment will
be selected based on the "circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision." (Rule 4.420(b), italics added; see
§ 1170, subds. (a)(3) ["In sentencing the convicted person, the court shall apply the
sentencing rules of the Judicial Council"], (b) ["The court shall select the term which, in
the court's discretion, best serves the interests of justice"].) Rule 4.421 makes clear that
the "[c]ircumstances in aggravation include factors relating to the crime" as well as
"factors relating to the defendant." (Rule 4.421.) The factors relating to the defendant
include the circumstance that the "defendant has engaged in violent conduct that indicates
a serious danger to society." (Rule 4.421(b)(1).)
The Advisory Committee Comment following rule 4.421 also cites In re
Rodriguez, supra, 14 Cal.3d 639 and states: "Refusal to consider the personal
characteristics of the defendant in imposing sentence would also raise serious
constitutional questions. The California Supreme Court has held that sentencing
decisions must take into account 'the nature of the offense and/or the offender, with
particular regard to the degree of danger both present to society.' In re Rodriguez (1975)
14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425. In In re Rodriguez the
court released petitioner from further incarceration because '[I]t appears that neither the
circumstances of his offense nor his personal characteristics establish a danger to society
sufficient to justify such a prolonged period of imprisonment.' (Id. at 655.) (Footnote
omitted, emphasis added.) 'For the determination of sentences, justice generally requires
. . . that there be taken into account the circumstances of the offense together with the
character and propensities of the offender.' [¶] (Pennsylvania v. Ashe (1937) 302 U.S.
1451, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)"8
(Advisory Com. com., 23, Pt. 1B West's Ann. Code, Court Rules (2006 ed.) foll. rule
4.421, pp. 266-267.)
In People v. Gonzales (1989) 208 Cal.App.3d 1170, the appellate court held that
the "defendant's conduct subsequent to the charged offense was properly considered as a
factor in aggravation." (Id. at p. 1173, review den. May 31, 1989.) The defendant had
been convicted of voluntary manslaughter for shooting a neighbor. (Id. at p. 1171.) The
appellate court concluded the trial court had properly imposed the upper term based upon
the defendant's subsequent conviction for firing three shots from a revolver at a gas
station attendant. (Id. at pp. 1172-1173.) The court observed: "Some appellate courts
8
We observe that the Ninth Circuit has concluded that section 4A1.3 of the Federal
Sentencing Guidelines, which U.S. v. Booker (2005) 543 U.S. 220, 245 [125 S.Ct. 738]
rendered advisory, "authorizes a court to take into consideration a defendant's post-
offense, pre-sentence conduct as a possible ground for departing upward in imposing
sentence. See, e.g., United States v. Yates, 22 F.3d 981, 987 (10th Cir.1994)
('[s]ubsequent criminal conduct involving the commission of similar offenses before
sentencing also is a permissible basis for departing upwards in the criminal history
category') (citation omitted); United States v. Fahm, 13 F.3d 447, 450 n. 3, 451 (1st
Cir.1994) (offense committed while awaiting sentencing on federal charge and trial on
related state charges) (citations omitted); United States v. Keats, 937 F.2d 58, 66-67 (2d
Cir.) ('[a]n upward departure in the criminal history category can be based on post-arrest
conduct') (citations omitted), cert. denied, 502 U.S. 950, 112 S.Ct. 399, 116 L.Ed.2d 348(1991); United States v. Fayette, 895 F.2d 1375, 1380 (11th Cir.1990) ('departure may be
justified when, as a consequence of post-plea criminal conduct, the otherwise applicable
guidelines sentencing range significantly under-represents the . . . defendant's . . . likely
recidivism'); United States v. Sanchez, 893 F.2d 679, 681-82 (5th Cir.1990) (offense
committed while on bond and awaiting trial on related charges); United States v. Jordan,
890 F.2d 968, 976-77 (7th Cir.1989) (post-offense, pre-sentence drug dealing in a drug
trafficking case)." (U.S. v. Myers (9th Cir. 1994) 41 F.3d 531, 533-534.) On the other
hand, "when a defendant's sentence has been set aside on appeal, a district court at
resentencing may consider evidence of the defendant's postsentencing rehabilitation and
that such evidence may, in appropriate cases, support a downward variance from the
now-advisory Federal Sentencing Guidelines range." (Pepper v. U.S. (2011) ___ U.S.
___, ___ [131 S.Ct. 1229, 1236].)
15
have described Rodriguez's no-subsequent-conduct rule as remaining applicable under
determinate sentencing law, although none have applied it to the initial choice of a base
term. [Citations.] The California Supreme Court, however, does not appear to interpret
Rodriguez as prohibiting the use of defendant's conduct between commission of the
offense and the time of sentencing to justify a more severe sentence." (Id. at p. 1173.)
We conclude that defendant's reliance on rule 4.435(b)(1) is misplaced. While
probation and DEJ dispositions have many similarities, there are also differences. (See
People v. Mazurette (2001) 24 Cal.4th 789, 796.) We decline to extend to rule 4.435's
restriction on sentencing on revocation of probation to sentencing on the revocation of
DEJ based upon defendant's limited argument that these dispositions are similar.
B. Custody Credits
1. Basic Law
"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. (See People v. Cooper (2002) 27 Cal.4th 38, 40.)" (People
v. Duff (2010) 50 Cal.4th 787, 793.)
Section 2900.5, subdivision (a), states in pertinent part and effectively stated at all
pertinent times: "In all felony and misdemeanor convictions . . . , when the defendant has
been in custody , including, but not limited to, any time spent in a jail . . . , all days of
custody of the defendant , including days . . . credited to the period of confinement
pursuant to Section 4019 . . . , shall be credited upon his or her term of imprisonment
. . . ." (Stats. 2011, ch. 15, § 466, p. 480, eff. April 4, 2011, operative Oct. 1, 2011, see
16
Stats.1998, ch. 338, § 6, pp. 2718-2719, eff. Aug. 21, 1998, operative Jan. 1, 1999; see
also Stats. 2011, ch. 15, § 636, p. 622; Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30,
2011.) A partial day spent in county jail is counted as a day of custody for which a
defendant is entitled to credit. (People v. King (1992) 3 Cal.App.4th 882, 886; People v.
Smith (1989) 211 Cal.App.3d 523, 526.)
Section 2900.5, subdivision (b), provides and at all relevant times provided: "For
the purposes of this section, credit shall be given only where the custody to be credited is
attributable to proceedings related to the same conduct for which the defendant has been
convicted. Credit shall be given only once for a single period of custody attributable to
multiple offenses for which a consecutive sentence is imposed." (Stats. 2011, ch. 15,
§ 466, pp. 480-481, eff. April 4, 2011, operative Oct. 1, 2011; Stats.1998, ch. 338, § 6,
pp. 2718-2719, eff. Aug. 21, 1998, operative Jan. 1, 1999; see Stats. 2011, ch. 15, § 636,
p. 622; Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30, 2011; Stats. 2011, ch. 40, § 3, p.
1748, eff. June 30, 2011.)
Effective September 28, 2010, the Legislature amended section 4019 and section
2933. (Stats. 2010, ch. 426, §§ 1, 2, pp. 2087-2088.) That amendment of section 2933
allowed certain defendants who were sentenced to state prison and for whom the sentence
was executed to earn presentence conduct credit at the rate of one day for every day of
actual custody "[n]otwithstanding Section 4019." (Stats. 2010, ch. 426, § 1, p. 2087, eff.
Sept. 28, 2010 [former § 2933, subd. (e)].) This was the law in effect during May 2011,
when defendant committed the crime of which he was convicted in Case No. CR-11-
01168 and when he was first confined in county jail on that offense.
The current version of section 4019 went into effect on September 21, 2011 and
became operative October 1, 2011. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, §§ 35, 47,
pp. 5976-5977, 5981.) Section 4019 presently allows a term of four days to be deemed
served for every two days spent in actual presentence custody based on a defendant's
17
conduct.9 (§ 4019, subds. (b), (c), & (f).) It applies, however, only to crimes committed
on or after October 1, 2011. (§ 4019, subd. (h).) It states: "Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law." (Ibid.)
The various permutations of section 4019 since its amendment effective
September 28, 2010 have not applied to defendant's possession of a controlled substance
offense committed in May 2011.10 Section 2933 has been amended to no longer provide
for presentence conduct credit. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16, p. 5963,
eff. Sept. 21, 2011 and operative Oct. 1, 2011.)
9
Subdivision (b) of section 4019 generally provides that "for each four-day period
in which a prisoner is confined in or committed to a facility as specified in this section,
one day shall be deducted from his or her period of confinement unless it appears by the
record that the prisoner has refused to satisfactorily perform labor as assigned . . . ."
Subdivision (c) of section 4019 generally provides: "For each four-day period in which a
prisoner is confined in or committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears by the record that the
prisoner has not satisfactorily complied with the reasonable rules and regulations . . . ."
Subdivision (f) of section 4019 makes plain that subdivisions (b) and (c) must be read
together: "It is the intent of the Legislature that if all days are earned under this section, a
term of four days will be deemed to have been served for every two days spent in actual
custody."
10
Effective April 4, 2011, section 4019 as amended applied to prisoners confined to
jail for a crime committed on or after July 1, 2011. (Stats. 2011, ch. 15, § 482, p. 498,
operative Oct. 1, 2011.) Effective June 30, 2011, section 4019 as amended applied to
prisoners confined to jail for a crime committed on or after October 1, 2011. (Stats.
2011, ch. 39, § 53, p. 1731, operative Oct. 1, 2011.) Effective Sept. 21, 2011, section
4019 as amended applied to prisoners confined to jail for a crime committed on or after
October 1, 2011. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, p. 5977, operative Oct. 1,
2011.) Each version stated that "[a]ny days earned by a prisoner" confined for crimes
committed prior to the specified date "shall be calculated at the rate required by the prior
law." (Stats. 2011, ch. 15, § 482, p. 498, operative Oct. 1, 2011; Stats. 2011, ch. 39, § 53,
p. 1731, operative Oct. 1, 2011; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, p. 5977,
operative Oct. 1, 2011.)
18
2. Credit for Actual Time Spent in Presentence Custody
a. Governing Legal Principles
The California Supreme Court has recognized that "there is no simple or universal
formula to solve all presentence credit issues" but the "aim is to provide for section
2900.5 a construction which is faithful to its language, which produces fair and
reasonable results in a majority of cases, and which can be readily understood and
applied by trial courts." (In re Joyner (1989) 48 Cal.3d 487, 495 (Joyner), accord People
v. Bruner (1995) 9 Cal.4th 1178, 1195 (Bruner).) "As with many determinations of
credit, a seemingly simple question can reveal hidden complexities. Although the
statutory language in section 2900.5 'may appear to have meaning which is self-evident,
the appellate courts have had considerable difficulty in applying the words to novel facts.'
[Citation.] 'Probably the only sure consensus among the appellate courts is a recognition
that section 2900.5, subdivision (b), is "difficult to interpret and apply." [Citation.] As
[the California Supreme Court has] noted, in what is surely an understatement, "[c]redit
determination is not a simple matter." ' [Citation.]" (In re Marquez (2003) 30 Cal.4th 14,
19.)
In Joyner, supra, 48 Cal.3d 487, which involved criminal proceedings in
California and Florida, the Supreme Court established a "strict causation" test for the
award of presentence custody credits under section 2900.5. It held: "[A] period of time
previously credited against a sentence for unrelated offenses cannot be deemed
'attributable to proceedings' resulting in a later-imposed sentence unless it is
demonstrated that the claimant would have been at liberty during the period were it not
for a restraint relating to the proceedings resulting in the later sentence. In other words,
duplicative credits against separately imposed concurrent sentences for unrelated offenses
will be granted only on a showing of strict causation." (Id. at p. 489.)
19
In reaching its holding in Joyner, the Supreme Court examined the purposes for
presentence credits: "(1) eliminating the unequal treatment suffered by indigent
defendants who, because of their inability to post bail, serve a longer overall confinement
for a given offense than their wealthier counterparts [citation] and (2) equalizing the
actual time served in custody by defendants convicted of the same offense [citation]."
(Id. at p. 494.) It noted that both "purposes are concerned with equalizing the treatment
of different individuals each convicted in a single proceeding of the same offense or
offenses." (Ibid.)
In Bruner, supra, 9 Cal.4th 1178, the Supreme Court applied Joyner's "strict
causation" test to a different factual scenario. Defendant Bruner was convicted of a new
crime and received a prison sentence "concurrent" to a term he was already serving for
violation of his parole in another case. (Id. at p. 1180.) The defendant's "custody as a
parole violator was based in part on the same drug incident that led to the later
conviction, but also upon additional, unrelated grounds." (Ibid.) The court held:
"[W]hen presentence custody may be concurrently attributable to two or more unrelated
acts, and where the defendant has already received credit for such custody in another
proceeding, the strict causation rules of Joyner should apply. Here, defendant received
credit for all presentence custody in his parole revocation proceeding, and he has failed to
demonstrate that but for the cocaine possession leading to his current sentence, he would
have been free, or at least bailable, during that presentence period. Hence, he is not
entitled to duplicative credit against the current sentence." (Id. at pp. 1180-1181.)
Bruner concluded that post-Joyner decisions had correctly applied "a general
rule," not limited to the dual jurisdiction situation in Joyner, that "a prisoner is not
entitled to credit for presentence confinement unless he shows that the conduct which led
to his conviction was the sole reason for his loss of liberty during the presentence
period." (Id. at p. 1191.) The Supreme Court in Bruner acknowledged the difficulty of
20
satisfying the rule of "strict causation" but explained that "it arises from the limited
purposes of the credit statute itself." (Id. at p. 1193.)
In Bruner, the Supreme Court briefly discussed the second sentence of section
2900.5, subdivision (b), which limits credit where a single period of custody is
attributable to multiple offenses subjected to consecutive sentences. It noted: "[T]here is
no indication the 1978 amendment [to section 2900.5, which added the second sentence
to subdivision (b),] was concerned with concurrent sentences for unrelated conduct
imposed in multiple proceedings. By its terms, the amendment does no more than clarify
that when consecutive terms are imposed for multiple offenses in a single proceeding,
only one of the terms shall receive credit for presentence custody, while leaving
undisturbed the accepted principle that when concurrent sentences are imposed at the
same time, presentence custody is credited against all." (Bruner, supra, 9 Cal.4th at p.
1192, fn. 9.)
As alluded to in Bruner, an altogether different situation exists where presentence
custody is attributable to multiple instances of unrelated criminal conduct that are
charged together and the court simultaneously imposes concurrent sentences. "If the
defendant is arrested and charged with multiple offenses, the presentence time is credited
against the term imposed on each crime where concurrent sentences are imposed.
(People v. Schuler (1977) 76 Cal.App.3d 324, 330.) Thus, if the multiple crimes are
prosecuted in a single proceeding and concurrent sentences are ordered, it makes no
difference that the crimes were committed at different times." (People v. Adrian (1987)
191 Cal.App.3d 868, 875-876; see People v. Ayon (1987) 196 Cal.App.3d 1114, 1117.)
People v. Kunath (2012) 203 Cal.App.4th 906, extended this analysis to
simultaneous concurrent sentencing in multiple cases. In Kunath, the defendant was "in
presentence custody on mere charges of crime until he was sentenced simultaneously" in
two separate cases. (Id. at p. 911.) Defendant Kunath was first arrested for possession of
21
a controlled substance for sale and released on bond in that case. (Id. at p. 909.) A short
time later, he was arrested for an unrelated possession of a controlled substance and
confined pending trial. (Ibid.) After he pleaded guilty in both cases, he was sentenced to
concurrent prison terms in a single sentencing hearing. (Ibid.) The appellate court
determined that, under section 2900.5, "when concurrent sentences are imposed at the
same time for unrelated crimes, the defendant is entitled to presentence custody credits on
each sentence, provided he is not also in postsentence custody for another crime." (Id. at
p. 908.) It reasoned: "Where . . . the defendant's custody is solely presentence on all
charges and he is simultaneously sentenced on all charges to concurrent terms, the policy
behind section 2900.5 applies. Presentence custody credits must apply to all charges to
equalize the total time in custody between those who obtain presentence release and those
who do not." (Id. at p. 911.)
b. Case No. CR-12-00027
Defendant was initially arrested on January 7, 2012 for conduct leading to the
charges in Case No. CR-12-00027 and retained in local custody from that date forward
through sentencing. As indicated, the probation report recommended that defendant be
credited only for presentence custody from January 10, 2012 (date of arraignment on the
original complaint in Case No. CR-12-00027) to January 18, 2012 (release on O.R. in
Case No. CR-12-00027). The court impliedly followed this recommendation.
On appeal, the parties agree that custody from January 7, 2012, the date of arrest,
to June 7, 2012, the date of sentencing, was "attributable to proceedings related to the
same conduct for which the defendant has been convicted" in Case No. CR-12-00027.
(§ 2900.5, subd. (b).) Even though defendant was theoretically entitled to release on O.R.
in CR-12-00027 from January 18, 2012 onward, it appears from the record that defendant
remained in custody through sentencing because he did not obtain release in Case No.
CR-11-01168. The continuing custody in that case was based upon defendant's failure to
22
obey all laws, which defendant maintains was "wholly attributable to the charges in the
attempted carjacking case . . . ." (Case No. CR-12-00027). The Attorney General
concedes this claim, stating the defendant "would not have been in custody from January
to June 2012 but for the crimes he committed in case number 27."
Defendant compares this case to People v. Williams (1992) 10 Cal.App.4th 827.
In Bruner, the Supreme Court cited Williams with approval and observed that the
appellate court had determined that the defendant was "entitled to credit against his
sentence for time spent in custody on the probation revocation because this custody arose
from the identical conduct that led to the criminal sentence." (Bruner, supra, 9 Cal.4th at
p. 1193, fn. 10.) Bruner pointed out that one of the reasons for the appellate court's
decision was that "the record of the probation revocation disclosed no basis for a
conclusion that the 'obey all laws' violation related to anything except the kidnapping-
assault case." (Ibid.) It noted that a second reason was that "the mere dismissal of certain
counts in the criminal proceeding, all of which counts stemmed from the same criminal
episode, did not mean that the revocation was based on conduct different from that
leading to the criminal sentence. [Citation.]" (Ibid.)
While the facts of Williams are not exactly analogous to the circumstances of this
case, we find the following principle to be sound: the dismissal of some counts of a
multiple-count information does not cause presentence custody resulting from a criminal
episode, which leads to probation revocation in an earlier case, to necessarily become
nonattributable where the criminal proceeding continues to relate to that same conduct
and defendant is convicted. (See People v. Williams, supra, 10 Cal.App.4th at pp. 829,
832-835.) Also, similar to the situation in Williams, it appears that the only basis for the
court's summary revocation of DEJ for defendant's violation of the DEJP's "obey all
laws" condition in Case No. CR-11-01168 was defendant's criminal conduct that resulted
in the convictions in Case No. CR-12-00027. Thus, all of defendant's presentence
23
custody following his arrest on January 7, 2012 was attributable to his criminal conduct
on January 6, 2012. Since the trial court simultaneously sentenced defendant to
concurrent terms, this case does not present any issue of duplicative credit applied to
terms of incarceration imposed at different times resulting in a windfall to a defendant.
(See Bruner, supra, 9 Cal.4th at pp. 1191-1193; see also In re Marquez, supra, 30 Cal.4th
at p. 23 ["The requirement of 'strict causation,' on which this court relied in Bruner . . .
and Joyner . . . , is applicable in cases involving the possibility of duplicate credit that
might create a windfall for the defendant"]; cf. People v. Kunath, supra, 203 Cal.App.4th
at pp. 908-911.) Accordingly, we agree that defendant is entitled under section 2900.5,
subdivision (b), to credit for time spent in jail from the date of his arrest on January 7,
2012 until he was sentenced on June 7, 2012, a total of 153 actual days.11
c. Case No. CR-11-01168
In Case No. CR-11-01168, the probation report recommended that defendant be
given presentence credit for a total of 147 actual days. Those days of actual custody
included three days in early January, specifically January 7, 2012 (the date of his arrest
for conduct leading to the charges in Case No. CR-12-00027) through and including
January 9, 2012 (the day before defendant's arraignment in Case No. CR-12-00027). No
credit was given for January 18, 2012, the date the court summarily revoked DEJ in Case
No. CR-11-01168 and released defendant on O.R. in Case No. CR-12-00027. The court
impliedly followed the probation officer's recommendation regarding calculation of the
actual days served.
We asked the parties to address in supplemental briefing whether defendant was
entitled to any presentence credit in Case No. CR-11-01168 during the month of January
11
In light of our conclusion, we do not address defendant's other arguments that the
orders releasing him on O.R. were "a mere sham employed to deprive him of credits he
should have received" or the trial court failed to comply with the law applicable to his
release on O.R. (See §§ 1270.1, subd. (b), 1318 et seq.)
24
2012 before summary revocation of DEJ on January 18, 2012 or for custody on
January 18, 2012. It appears from the record that, following his arrest on January 7,
2012, defendant was not initially in custody attributable to proceedings related to the
same conduct for which the defendant was convicted in Case No. CR-11-01168, namely
possession of a controlled substance. Once the court summarily revoked DEJ pending
hearing on the alleged violation of the DEJP's terms and conditions, defendant's custody
in Case No CR-11-01168 was then also attributable to the proceedings related to the same
conduct for which the defendant was convicted in that case.
In People v. Pruitt (2008) 161 Cal.App.4th 637, a defendant appealed from a
judgment following revocation of probation. He challenged the trial court's refusal to
award credit for a period of presentence custody from the date of his arrest on new
charges to the day before summary revocation of probation. (Id. at pp. 639-641.) After
the probation violation hearing, the defendant became subject to the previously
suspended sentence. (Id. at p. 640.) In the new case, the charges were dismissed in
furtherance of justice (§ 1385) at the request of the People. (Id. at pp. 640-641.) The
issue on appeal was whether the defendant was entitled to presentence custody credit "for
the time spent in jail on the new criminal charges following . . . arrest but prior to the
summary revocation of . . . probation." (Id. at p. 639.)
The appellate court concluded that defendant Pruitt was not entitled to custody
credit in the probation case for "an initial period solely attributable to the new charges" in
the separate case. (Id. at p. 649.) It explained: "That custody, even though based on the
conduct that ultimately led to revocation of his probation, was clearly and simply not for
the same conduct for which he had been convicted and sentenced. In the words of
section 2900.5, subdivision (b), that initial custody was not 'attributable to proceedings
related to the same conduct for which the defendant has been convicted.' " (Ibid.)
25
We similarly conclude that defendant was not entitled to credit in Case No. CR-
11-01168 for the initial period of custody following his January 7, 2012 arrest and prior
to summary revocation of DEJ because, during that period, defendant's custody was
attributable solely to new, unrelated criminal conduct. Courts are statutorily precluded
from giving credit unless "the custody to be credited is attributable to proceedings related
to the same conduct for which the defendant has been convicted." (§ 2900.5, subd. (b).)
Defendant's presentence custody became attributable to the proceedings in Case
No. CR-11-01168 beginning on January 18, 2012, when DEJ was summarily revoked and
defendant remained in custody. (See People v. King, supra, 3 Cal.App.4th at p. 886
[partial day is credited as a day]; cf. People v. Kunath, supra, 203 Cal.App.4th 906.)
This result obtains because "[t]he purpose of section 2900.5 is to equalize the total time
in custody between those who suffered presentence custody on unproven charges and
those who did not. (See Bruner, supra, 9 Cal.4th at pp. 1183–1184.)" (People v. Kunath,
supra, 203 Cal.App.4th at p. 910.) Accordingly, defendant is entitled to credit for 145
actual days spent in custody, consisting of the three days in custody prior to January 2012
and 142 days spent in custody upon summary revocation of DEJ on January 18, 2012
through sentencing on June 7, 2012. The parties now agree with this calculation.
3. Computation of Conduct Credit
a. Case No. CR-12-00027
The People do not dispute that, since defendant was entitled to 153 actual days of
presentence custody credit in Case No. CR-12-00027, he is entitled to 152 days of
conduct credit under section 4019.12 This calculation appears to be correct. (See § 4019,
subds. (b), (c), (f), & (h); cf. In re Marquez, supra, 30 Cal.4th at p. 26.)
12
Defendant maintains that attempted carjacking is not a violent felony and,
therefore, he is not subject to the 15 percent presentence credit limitation of section
2933.1, subdivision (c). The Attorney General does not dispute this claim. While
carjacking is expressly listed in subdivision (c) of section 667.5 (§ 667.5, subd. (c)(17)),
26
b. Case No. CR-11-01168
Defendant asserts that the trial court erred in applying a 20 percent credit
limitation to the calculation of conduct credits in Case No. CR-11-01168. We find merit
in this contention.
During voir dire at the change of plea hearing on May 3, 2012, defendant
expressed his understanding that the felony to which he was pleading (attempted
carjacking) in Case No. CR-12-00027 was a violent felony and a strike under Three
Strikes law. He indicated that he understood that the credits he would earn in state prison
would be subject to a 15 percent limitation.
In the probation report for Case No. CR-12-00027 (attempted carjacking, etc.), the
15 percent limitation of section 2933.1, subdivision (c), applicable to presentence credit
was not applied in calculating the recommended conduct credit. But in the probation
report for Case No. CR-11-01168 (possession of a controlled substance), this 15 percent
limitation was applied and the conduct credit was calculated to be 22 days.
At the sentencing hearing, the probation officer explained that she had limited
conduct credit to 15 percent of the actual days in custody because defendant had admitted
that the felony to which he had pleaded was a violent felony and a strike. Defense
counsel argued that offense was a serious, but not a violent, felony.13 The prosecutor
agreed that the crime appeared to be a serious felony pursuant to section 1192.7 and not a
an "attempted carjacking" is not. While "any felony in which the defendant uses a
firearm which use has been charged and proved as provided in . . . Section 12022.5" is a
violent felony within the meaning of section 667.5, subdivision (c) (§ 667.5, subd.
(c)(8)), the enhancement allegations under section 12022.5, subdivision (a), were not
admitted by defendant or proved.
13
Attempted carjacking was at all relevant times and still is a serious felony within
the meaning of section 1192.7, subdivision (c). (§ 1192.7, subds. (c)(27) & (c)(39);
former § 1192.7, subds. (c)(27) & (c)(39) [Stats.2006, ch. 337, § 37, pp. 2643-2644, eff.
Sept. 20, 2006].)
27
violent felony under section 667.5 and, therefore, the credits "would be adjusted
accordingly."
The court awarded credit for 147 actual days plus 29 days of conduct credit, which
reflected a "20 percent limitation," for a total of 176 days of credit in Case No. CR-11-
01168. Defense counsel asserted that defendant was entitled to "50 percent" conduct
credit and submitted the matter. The abstract of judgment reflects the court's credit
calculation.
In Case Number CR-11-01168, defendant now reiterates that he was not convicted
of a violent felony (see § 667.5, subd. (c)) and, therefore, the 15 percent limitation of
section 2933.1, subdivision (c), did not apply and he was entitled to full presentence
conduct credit. Under section 2933.1, subdivision (c), presentence conduct credit is
limited to 15 percent of the actual period of presentence confinement "[n]otwithstanding
Section 4019 or any other provision of law . . . ." It applies to "any person who is
convicted of a felony offense listed in subdivision (c) of Section 667.5." (§ 2933.1, subd.
(a).) The record does not establish that defendant was convicted of any qualifying violent
felony within the meaning of section 2933.1, subdivision (c). (See § 667.5, subd. (c); fn.
12, ante.)
Defendant also points out the Three Strikes 20 percent credit limitation based on a
prior strike conviction (a prior serious or violent felony) did not apply to him and, in any
event, it applies only to post-sentence credit. (See §§ 667, subd. (c)(5); 1170.12, subd.
(a)(5); see also §§ 667.5, subd. (c) ["violent felony" defined], § 1192.7, subd. (c)
["serious felony" defined]; In re Martinez (2003) 30 Cal.4th 29, 34; cf. § 2933.1, subd.
(c).) The People properly concede that defendant was not subject to a 20 percent credit
limitation.
Defendant initially asserted on appeal that he is entitled to 147 days of actual
credit and 146 days of conduct credit in Case Number CR-11-01168. The People initially
28
agreed with defendant's computation. Following our request for further briefing, both
parties agree, as do we, that defendant is entitled to 145 actual days of credit for time
served in Case No. CR-11-01168 and 145 days of conduct credit under former section
2933 (Stats. 2010, ch. 426, § 1, p. 2087), which was in effect on May 18, 2011 when he
committed the crime and which governs under section 4019.14 (Cf. People v. Hul (2013)
213 Cal.App.4th 182, 187 ["under prior law governing Hul's May 2011 offense date, the
16–month sentence the trial court imposed would have been served in state prison
(former Health & Saf. Code, § 11350, subd. (a), Stats. 2000, ch. 8 (S.B.550), § 3) not a
county jail, and the applicable rate of presentence conduct credit therefore would have
been full, day-for-day credit (compare former § 2933, with former § 4019)"].)
DISPOSITION
The judgment is modified to award defendant a total of 305 days of presentence
custody credits, consisting of 153 actual days and 152 days of conduct credit, in Case No.
CR-12-00027. The judgment is modified to award defendant a total of 290 days of
presentence custody credits, consisting of 145 actual days and 145 days of conduct credit,
in Case No. CR-11-01168. As modified, the judgment is affirmed. The trial court
14
In May 2011, a violation of former Health and Safety Code section 11350,
subdivision (a), was "punished by imprisonment in the state prison." (See Stats. 2000,
ch. 8, § 3, p. 50, eff. March 29, 2000; cf. Health & Saf. Code, § 11350, subd. (a) [Stats.
2011, ch. 15, § 151, p. 319, eff. April 4, 2011, operative Oct. 1, 2011] [a violation is now
"punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code" (realignment)]; see Stats. 2011, ch. 15, § 636, p. 622; Stats. 2011, ch. 40, § 3, p.
1748, eff. June 30, 2011; Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30, 2011.)
29
is directed to prepare an amended abstract of judgment reflecting the modifications and to
forward a certified copy to the Department of Corrections and Rehabilitation.
_______________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
30