Opinion
C067735
02-03-2012
THE PEOPLE, Plaintiff and Respondent, v. ANDREW KEITH LOCKNER, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CM032930)
Defendant Andrew Keith Lockner appeals from a judgment of conviction entered after he pleaded no contest to receiving stolen property and admitted having served a prior prison term for second degree burglary. He contends the trial court should have awarded him day-for-day presentence conduct credits under Penal Code section 4019. The People concede remand is appropriate under the circumstances, because the trial court erred in calculating defendant's presentence credits. The People do not concede that defendant is entitled to day-for-day credits. Because we agree that defendant's credits must be recalculated, we shall remand the matter back to the trial court.
Undesignated statutory references are to the Penal Code in effect at the time of defendant's sentencing on July 20, 2011, prior to the enactment of the Criminal Justice Realignment Act of 2011, which became operative on October 1, 2011, and divided felonies for the purpose of sentencing into three groups. This act thus modified numerous Penal Code sections. (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.)
On November 10, 2010, the trial court ordered defendant's four-year state prison sentence suspended, found him to be addicted to narcotics, and ordered him committed to the California Rehabilitation Center (CRC). At that hearing, the court also recited that defendant had then accrued 83 days of actual custody credits and 82 days of conduct credits, for total presentence credits of 165 days.
On February 14, 2011, CRC notified the trial court it had determined, as of the preceding February 3, that defendant was excluded as not eligible for CRC. After defendant was excluded from CRC, a hearing was held on March 16, 2011, to determine his presentence credits. The court determined that defendant had accrued 209 days of actual custody credits: local time of 83 days, plus 126 days of "state time." But it reduced defendant's conduct credits to 58 days, over defense counsel's objection.
While defendant's appeal in this matter was pending, the trial court responded to defendant's request that it review his time credits and, on July 20, 2011, the court determined that defendant had accrued 271 days of actual custody credits, including 124 days of local time, and 62 days of conduct credit.In so doing, the trial court expressly found that "defendant's prior serious felony" renders him ineligible for day-for-day presentence custody credits.
The trial court amended the judgment to reflect the date of CRC exclusion as February 3, 2011, and directed that the abstract of judgment be amended to reflect the corresponding change in credits. Accordingly, we need not address the suggestion contained in respondent's brief that the original abstract of judgment may have contained a misstatement of the time spent by defendant in CRC.
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The trial court erred. A criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the version of section 4019 in effect prior to January 25, 2010, a defendant earned two days of conduct credit for every four days served in local custody. (Former § 4019, subds. (b), (c).) In October 2009, the Legislature enacted Senate Bill No. 18XXX which, among other things, amended section 4019, effective January 25, 2010, to permit defendants who have no current or prior serious or violent felony convictions and who are not required to register as sex offenders to earn two days of conduct credit for every two days in custody. (Former § 4019, subds. (b)(1), (c)(1), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Senate Bill No. 76 amended section 2933, effective September 28, 2010, and provided that a qualifying defendant convicted of a felony and sentenced to state prison, is entitled to one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, former subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18XXX, when the person served an odd number of days in actual presentence custody. (See Stats. 2010, ch. 426, § 1.)
Applying these amendments, defendant insists he is entitled to day-for-day presentence custody credits because the record contains no pleading or proof of any disqualifying convictions. The People concede, and we agree, that nothing in the record suggests, much less pleads and proves, that defendant has suffered any conviction that would disqualify him under the statutory scheme in place at the time of his sentencing from accruing day-for-day conduct credits. If the trial court reduced defendant's conduct credits from 82 to 62 days based on its apparent belief that he had suffered a disqualifying conviction, that conclusion finds no support in the record.
We therefore remand the matter back to the trial court for a recalculation of defendant's credits.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for recalculation of presentence custody credits consistent with this opinion.
BUTZ, J. We concur:
RAYE, P. J.
BLEASE, J.