People v. Fischer CA6

Filed 5/2/16 P. v. Fischer 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H042791
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F24689)
v.
ERIN HOWARD FISCHER,
Defendant and Appellant.
I. INTRODUCTION
Defendant Erin Howard Fischer pleaded no contest to carrying a loaded firearm in
a vehicle by a felon (Pen. Code, § 25850, subd. (c)(1)).1 The trial court sentenced him to
three years in prison and granted 1,142 days of custody credits, consisting of 809 actual
days plus 333 days conduct credit. The original minute order for the sentencing
proceeding and the original abstract of judgment indicated that defendant was granted
conduct credit pursuant to section 2933.1.
On appeal, defendant contends that the minute order and the abstract of judgment
must be corrected to delete the references to section 2933.1 because he was granted
conduct credit pursuant to section 4019. While defendant’s appeal was pending, the trial
1
All further statutory references are to the Penal Code unless otherwise indicated.
court amended the minute order and the abstract of judgment to indicate that conduct
credit was granted pursuant to section 2933.
We agree with defendant that section 4019 was the proper basis for the trial
court’s grant of conduct credit. We will order the minute order and the abstract of
judgment corrected accordingly.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2013, defendant was stopped by a police officer and found to have weapons in
his vehicle and home. While criminal charges were pending against him, defendant was
found incompetent and spent nearly a year at Atascadero State Hospital before being
found competent. In 2014, defendant pleaded no contest to carrying a loaded firearm in a
vehicle by a felon (§ 25850, subd. (c)(1)). Before he could be sentenced, defendant was
again found incompetent and committed to Atascadero State Hospital. Defendant filed a
notice of appeal. This court dismissed the appeal in an unpublished decision. (People v.
Fischer (May Nov. 19, 2015, H041884) [nonpub. opn.].)2
In 2015, the hospital reported that defendant’s competence had been restored. The
court found defendant competent and reinstated criminal proceedings.
A sentencing hearing was held on July 20, 2015. The court sentenced defendant
to the upper term of three years in prison and dismissed all remaining counts. The court
characterized defendant’s sentence as a “paper commitment” in view of his custody
credits. The court granted defendant 1,142 days of custody credits, consisting of
809 actual days plus 333 days conduct credit. Regarding defendant’s 809 actual days in
custody, the court explained that defendant was at the hospital for 476 days and that he
would not receive “good time credits” for those days. For the remaining 333 actual days,
2
We take judicial notice of this court’s opinion in defendant’s previous appeal.
Our background summary includes information that we have taken from the prior
opinion.
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the court explained that defendant was in county jail, and for that period of time the court
was granting “double credits,” meaning 333 days conduct credit.
The original minute order for the sentencing proceeding and the original abstract
of judgment indicate that defendant was granted 809 actual days plus 333 days conduct
credit pursuant to section 2933.1, for a total of 1,142 days of custody credits.
III. DISCUSSION
Defendant contends that the original minute order for the sentencing hearing and
the original abstract of judgment erroneously indicate that he was granted conduct credit
pursuant to section 2933.1, which limits conduct credit for a defendant convicted of a
violent felony. Defendant contends that section 2933.1 does not apply to him, and that he
was granted conduct credit in accordance with section 4019. Defendant requests that the
original minute order for the sentencing hearing and the original abstract of judgment be
amended to delete the references to section 2933.1.
The Attorney General concedes that the references to section 2933.1 should be
deleted because defendant was not convicted of a violent felony.
After defendant filed his opening brief on appeal and before the Attorney General
filed a concession brief, defendant filed a written request in the trial court requesting
correction of the error. On February 17, 2016, the trial court ordered the minute order
and the abstract of judgment amended to state: “Defendant’s credit for time served is
809 days local time plus 333 days per 2933 PC for a total of 1142 days.” An amended
abstract of judgment filed that same day reflects the trial court’s order, including that
defendant was granted conduct credit pursuant to section 2933.
“Section 4019 specifies the rate at which prisoners in local custody may earn
credit against their sentences for good conduct while in custody. [Citation.]” (People v.
Whitaker (2015) 238 Cal. App. 4th 1354, 1358.) Section 2933.1 provides for a 15 percent
limitation on presentence conduct credit under section 4019 for defendants convicted of a
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violent felony under section 667.5, subdivision (c). (§ 2933.1, subds. (a), (c); People v.
Palacios (1997) 56 Cal. App. 4th 252, 258.)
In this case, section 2933.1 is not applicable to defendant’s grant of conduct credit.
Defendant was not convicted of a specified violent felony. Further, during the sentencing
hearing, neither the court nor the parties suggested that defendant’s offense constituted a
violent felony, or that section 2933.1 applied to defendant. Moreover, for the time period
that defendant was in jail and eligible to earn conduct credit, the court did not limit the
conduct credit to 15 percent. Under the circumstances, where there was no basis for
limiting defendant’s conduct credit by 15 percent and the court did not so limit
defendant’s conduct credit, neither the minute order nor the abstract of judgment should
indicate that section 2933.1 was the basis for defendant’s conduct credit.
While this appeal was pending, the trial court ordered the minute order and
abstract of judgment amended to indicate that defendant’s presentence conduct credit
was granted pursuant to section 2933. Section 2933 pertains to prison worktime credits
and authorizes the earning of credits once a defendant begins serving a prison sentence.
(People v. Saibu (2011) 191 Cal. App. 4th 1005, 1011-1012.) As defendant’s presentence
conduct credit was granted pursuant to section 4019, neither the minute order nor the
abstract of judgment should indicate that defendant was granted such credit pursuant to
section 2933.
In sum, neither section 2933 (regarding prison worktime credits) nor
section 2933.1 (regarding the limit on conduct credit for violent felonies) was the basis
for the trial court’s grant of presentence conduct credit. The minute order and the
abstract of judgment should reflect that defendant’s presentence conduct credit was
granted pursuant to section 4019, and we will order the record corrected accordingly.
IV. DISPOSITION
The judgment is affirmed. The minute order for the July 20, 2015 sentencing
hearing and the abstract of judgment are ordered corrected to state that defendant was
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granted conduct credit under Penal Code section 4019. The clerk of the superior court is
ordered to send a copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation.
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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.