People v. White CA4/1 ( 2013 )

Filed 2/28/13 P. v. White CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061507
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCN296460 &
SCD231738)
LATRELL KENNETH WHITE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael
Kirkman, Judge. Affirmed as modified with directions.
In case No. SCN296460, a jury found Latrell Kenneth White guilty of burglary (Pen.
Code, § 459)1 and petty theft (§ 484). White admitted having a prior petty theft conviction
(§ 666, subd. (b)(1)) and a strike (§ 667, subds. (b)-(i)). The court sentenced him to four years
in prison (twice the middle term) for burglary, with a stayed sentence for petty theft with a
prior theft conviction (§ 654). The court imposed a concurrent prison term in case No.
SCD231738, having earlier revoked probation in that case. White appeals, contending he is
1 All further statutory references are to the Penal Code.
entitled to additional presentence custody credit in case No. SCN296460 and the restitution
fine and parole revocation fine in case No. SCD231738 must be reduced.2 We agree with the
latter contention.
BACKGROUND
Case No. SCD231738
On January 7, 2011, the victim got off a bus and began walking. White followed him
and asked to use his cellular telephone. As the victim removed his telephone from his pocket,
White grabbed the telephone from the victim's hand and ran away. White pleaded guilty to
robbery (§ 211). On March 30, the court placed him on three years' probation.
Case No. SCN296460
On September 13, 2011, White entered a store, grabbed three or four large shopping
bags by a cash register. He went to the aisle where baby products were displayed and put 42 to
44 cans of baby formula into a shopping cart. He went to a different part of the store and put
the cans in the bags. He left the store with the formula and did not pay for it. Later that day,
White followed the same procedure at another store with approximately 24 cans of formula,
but did not take the merchandise with him when he left the store.
DISCUSSION
Credits
In case No. SCN296460, White was in custody from the date of his arrest (September
13, 2011) through the date of sentencing (January 5, 2012), a total of 115 days. The court
2 White also contends the restitution fine in case No. SCE302712 must be reduced to the
amount ordered when he was originally placed on probation in that case. Because White did
not file a notice of appeal in case No. SCE302712, we are without jurisdiction to grant him any
relief in that case. (In re Chavez (2003) 30 Cal.4th 643, 650; Cal. Rules of Court, rule 8.304.)
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awarded White 115 actual days' credit and 56 days' conduct credit (§ 4019), for a total of 171
days' credit.
Effective October 1, 2011, the Legislature amended section 4019 to provide for two
days' conduct credit for each four days served. (§ 4019, subd. (f).) "The changes to this
section enacted by the act that added this subdivision shall apply prospectively and shall apply
to prisoners who are confined to [jail] for a crime committed on or after October 1, 2011. Any
days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by
the prior law." (Id., subd. (h).) White contends principles of statutory interpretation compel
the conclusion he is entitled to an additional 48 days' conduct credit under this formula for his
days of custody beginning October 1, 2011, and any other interpretation would violate equal
protection guarantees. We reject these contentions for the reasons stated in People v. Ellis
(2012) 207 Cal.App.4th 1546; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-400 and
People v. Rajanayagam (2012) 211 Cal.App.4th 42.
Fines
In case No. SCD231738, when the court placed White on probation in 2011, it imposed
a $200 restitution fine (§ 1202.4, subd. (b)) and suspended a $200 probation revocation fine
(§ 1202.44). When the court sentenced him to prison in 2012, it imposed a $600 restitution
fine and a $600 parole revocation fine (§ 1202.45). Respondent correctly concedes the $600
restitution fine is unauthorized and must be stricken (People v. Perez (2011) 195 Cal.App.4th
801, 804-805), and the $600 parole revocation fine must be reduced to $200 (§ 1202.45).
Additionally, the suspension of the $200 probation revocation fine must be lifted. (§ 1202.44;
People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.)
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DISPOSITION
The judgment in case No. SCD231738 is modified as follows: The $600 restitution fine
(§ 1202.4, subd. (b)) and the $600 parole revocation fine (§ 1202.45) are stricken. The $200
restitution fine originally imposed remains. The $600 parole revocation fine is replaced with a
$200 parole revocation fine. The $200 probation revocation fine (§ 1202.44) is now due. The
trial court is directed to prepare an amended abstract of judgment and forward it to the
Department of Corrections and Rehabilitation.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.
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