Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F03259
HOCH, J.Defendant Dale King appeals a judgment following his conviction of first degree burglary with findings of a prior serious felony conviction. (Pen. Code, §§ 459, subd. (a), 667, subds. (b)-(i) & 1170.12.)
Undesignated statutory references are to the Penal Code.
The complaint did not allege, and defendant did not admit when he pled no contest, that anyone other than an accomplice was present in the residence when the burglary was committed. At sentencing, the trial court awarded him presentence credits of 94 days served, plus local conduct credits of 14 days, pursuant to section 2933.1.
On appeal, defendant contends the trial court erred by limiting his precustody conduct credits pursuant to section 2933.1, subdivision (a). He points out that burglary of an unoccupied residence is not subject to the presentence conduct credit limitation. (§ 667.5, subd. (c)(21); People v. Thomas (1999) 21 Cal.4th 1122, 1125, 1129.) The People concede the error.
We agree. Local conduct credits are limited to 15 percent of time served under section 2933.1 only for defendants convicted of a “violent felony, ” as defined by section 667.5, subdivision (c). (§ 2933.1; People v. Thomas, supra, 21 Cal.4th at p. 1127.) Burglary is not a violent felony listed in section 667.5, subdivision (c), except “wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).)
The parties agree that defendant’s local conduct credits should have been calculated at 50 percent of time served pursuant to section 4019. For 94 actual days served in county jail, defendant should have received 46 days of local conduct credit. We order the abstract of judgment so amended.
Defendant was awarded presentence custody credits under the version of section 4019 that was in effect prior to January 25, 2010. Former section 4019, subdivisions (b) and (c) provided that “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day was deducted from the period of confinement for performing assigned labor, and one day was deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) In addition, previously, subdivision (f) of section 4019 provided that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Stats. 1982, ch. 1234, § 7, p. 4554.)
DISPOSITION
The clerk of the superior court is ordered to amend the abstract of judgment to reflect 46 days of local conduct credits and provide a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HULL, Acting P. J., BUTZ, J.
The Legislature amended section 4019 effective January 25, 2010, to increase presentence credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as a sex offender. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009-10, 3d Ex. Sess., ch. 28, § 50.) These provisions do not apply to defendant who has a prior serious felony conviction.