People v. Broussard CA2/3 ( 2015 )

Filed 10/7/15 P. v. Broussard CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B261787
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415214)
v.
KENNETH W. BROUSSARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J.
Mitchell, Judge. Reversed and remanded for resentencing; otherwise affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
A jury found defendant and appellant Kenneth W. Broussard guilty of, among
other things, corporal injury to a spouse and criminal threats. He was sentenced to 28
years to life in prison. Because of errors in defendant’s sentence, we reverse and remand
for resentencing only.
BACKGROUND1
Based on evidence Broussard cut his wife’s neck with a box cutter and said he
would kill her, a jury, on December 18, 2013, found him guilty of: count 1, corporal
injury to spouse (Pen. Code, § 273.5, subd. (a))2 with a true finding on a personal use of a
deadly weapon allegation (§ 12022, subd. (b)(1)); count 3, criminal threats (§ 422,
subd. (a)); and count 4, assault with a deadly weapon (§ 245, subd. (a)(1)).3
On January 30, 2014, sentencing was suspended pending an evaluation of
Broussard’s mental competence, under section 1368. On February 25, 2014, the trial
court found Broussard to be mentally incompetent and referred him to a state hospital.
Proceedings resumed on October 20, 2014, following restoration of Broussard’s
competency.
On January 23, 2015, Broussard waived his rights and admitted two prior strike
convictions. The trial court sentenced Broussard, on count 3, to 25 years to life and, on
count 1, to one-third the midterm doubled to two years, plus one year for the weapon
enhancement. The trial court awarded only 945 actual days of custody credits, believing
that on “a life case he is not entitled to any good time/work time credits.”
1
An extensive recitation of the facts underlying Broussard’s conviction is
unnecessary to the issues on appeal.
2
All undesignated statutory references are to the Penal Code.
3
The jury found him not guilty of count 2, assault and battery.
2
DISCUSSION
I. Broussard is entitled to presentence conduct credit.
Broussard contends, the People concede, and we agree that Broussard is entitled to
presentence conduct credits. When a third strike defendant’s current convictions are not
“violent” within the meaning of section 667.5, he or she is entitled to presentence conduct
credits under section 4019. (People v. Thomas (1999) 21 Cal. 4th 1122, 1130; People v.
Philpot (2004) 122 Cal. App. 4th 893, 908 [“presentence conduct credits are available to a
defendant sentenced to an indeterminate life term under the three strikes law”].)
Broussard’s current convictions for corporal injury to spouse (§ 273.5, subd. (a)) and for
criminal threats (§ 422, subd. (a)) are not “violent” felonies, under section 667.5. He is
therefore entitled to presentence conduct credit under section 4019. He is not, however,
entitled to conduct credit for time spent at a state hospital. (People v. Callahan (2006)
144 Cal. App. 4th 678, 686.) Because the record is inadequate to determine how many
days Broussard was at a state hospital, we remand to the trial court to determine the
credits to which Broussard is entitled.
II. Broussard must be resentenced on the underlying counts.
On remand, the trial court also must reconsider the sentences imposed. The trial
court selected count 3, criminal threats, “as the principal term” and count 1, corporal
injury to a spouse, as the “subordinate term.” The court sentenced defendant to an
indeterminate term on count 3 and to a determinate term of one-third the midterm on
count 1.4 But “ ‘[w]hen a defendant is sentenced to both a determinate and an
indeterminate sentence, the determinate sentence is served first. Nonetheless, neither
term is “principal” [n]or “subordinate.” They are to be considered and calculated
independently of one another. [Citation.]’ ” (People v. Garza (2003) 107 Cal. App. 4th
1081, 1094.) Therefore, section 1170.1, which provides that subordinate terms shall
consist of one-third the midterm, does not apply here. The trial court erred by sentencing
4
Corporal injury to a spouse carries a determinate sentence of 2, 3 or 4 years in
prison. (§ 273.5, subd. (a).)
3
Broussard to one-third the midterm on count 1. On remand, the court shall reconsider its
sentence.
DISPOSITION
The judgment is reversed and remanded for resentencing only. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, Acting P. J.
We concur:
LAVIN, J.
JONES, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
4