People v. Malchier CA5 ( 2013 )

Filed 12/18/13 P. v. Malchier CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066603
Plaintiff and Respondent,
(Super. Ct. No. F11907306)
v.
SABRINA DESIREE MALCHER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jon N.
Kapetan, Judge.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Kane, J. and Franson, J.
Defendant Sabrina Desiree Malcher contends the trial court erred in refusing to
award her day-for-day credits. The People concede, and we agree, that defendant was
entitled to day-for-day credits under the version of Penal Code section 2933,
subdivision (e)1 that was in effect on the dates defendant committed the crimes. We will
modify the judgment to award defendant the correct number of presentence credits and
affirm in all other respects.
DISCUSSION
On September 13, 2012, defendant pled no contest to the felonies of identity theft
(§ 530.5, subd. (a)) and commercial burglary (§§ 459, 460, subd. (b)) for crimes she
committed on June 30, 2011, and July 8, 2011. On January 23, 2013, the trial court
sentenced her to two years in county jail. She requested “accelerated credits” for day-for-
day credits, but the court declined because she was being sentenced under the
Realignment Act (Stats. 2011, ch. 15, § 482 (Assem. Bill No. 109)) to county jail, rather
than prison. The trial court awarded her 224 days of credit for actual time served
(§ 2900.5) and 112 days of conduct credit (§ 4019).
When defendant committed her crimes in June and July 2011, conduct credits for
defendants convicted of felonies and sentenced to state prison were governed by
section 2933, former subdivision (e). (Stats. 2010, ch. 426, § 1.) That version authorized
day-for-day conduct credits: “Notwithstanding Section 4019 …, a prisoner sentenced to
the state prison under Section 1170 for whom the sentence is executed shall have one day
deducted from his or her period of confinement for every day he or she served in a county
jail … from the date of arrest until state prison credits pursuant to this article are
applicable to the prisoner.”
While defendant’s case was pending, the sentencing statutes were amended as part
of the Realignment Act. As a result, defendant was sentenced to county jail, rather than
1 All statutory references are to the Penal Code unless otherwise noted.
2.
state prison. Had she gone to prison, she would have been entitled to the additional
credits under section 2933, former subdivision (e). This postoffense change effected by
the Realignment Act could not serve to reduce defendant’s credits without violating the
constitutional prohibition on ex post facto laws. (See Weaver v. Graham (1981) 450 U.S.
24, 31; People v. Nunez (2013) 220 Cal.App.4th 1527 [2013 Cal.App. Lexis 883].)
Accordingly, we agree with both parties that defendant is entitled to 112 additional
days of conduct credits.
DISPOSITION
The judgment is modified to award defendant credit for a total of 448 days of
presentence credit, consisting of 224 days of actual custody and 224 days of conduct
credit. In all other respects, the judgment is affirmed. The trial court is directed to
prepare a corrected abstract of judgment and send a certified copy to the appropriate
agencies and entities.
3.