Opinion
G044361
02-07-2012
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO MARISCAL, JR., Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09CF1433)
OPINION
Appeal from an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Fernando Mariscal, Jr., appeals from an order denying his request to adjust sentencing credits based on the retroactive application of an amendment to Penal Code section 4019. Even were we to apply the amendment retroactively, we would conclude that defendant was not entitled to an adjustment in his sentencing credits. Consequently, we affirm.
All subsequent statutory references are to the Penal Code unless otherwise specifically stated.
I
FACTS
Defendant pleaded guilty to a violation of former section 12031, subdivisions (a)(1) and (a)(2)(C), and admitted to a prior conviction under section 667.5, subdivision (b), for a violation of section 496, subdivision (a). In his advisement and waiver of rights for a felony guilty plea, defendant stated: "6-7-09, I unlawfully possessed a loaded firearm in a vehicle while actively participating in Logan Street, a criminal street gang, with knowledge that its members have engaged in a pattern of criminal gang activity, and did willfully promote, further, assist in felony criminal conduct by members of the gang (Logan Street)."
On July 15, 2009, defendant was sentenced to the middle term of two years for the former section 12031, subdivision (a) conviction. The court also imposed a term of one year for the section 667.5, subdivision (b) prior, which the court found to be true or admitted. Defendant was thus sentenced to a total of three years in state prison. He received credit for 55 days for time served—37 days for actual time served and 18 days for conduct.
On June 28, 2010, defendant filed a motion to adjust sentencing credits, based on amendments to section 4019 and People v. Keating (2010) 185 Cal.App.4th 364, review granted September 22, 2010, S184354. The court denied the motion, holding that because defendant's case was final before the effective date of the section 4019 amendment in question, the amendment was inapplicable. Defendant appeals.
II
DISCUSSION
Defendant notes that the section 4019 amendment in question became effective on January 25, 2010, after he was sentenced. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427-4428.) He contends that the amendment applied retroactively to all prisoners serving their terms on the effective date. Defendant cites In re Kemp (2011) 192 Cal.App.4th 252, review granted April 13, 2011, S191112, in support of his position. He says the legislative history of the section 4019 amendment shows that the amendment was intended to apply retroactively to all judgments, even those that were already final. Defendant also argues that equal protection principles compel retroactive application of the amendment.
Defendant's opening brief was filed on April 1, 2011.
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The People, on the other hand, contend that even if the amendment were applied retroactively, it would not provide any additional sentencing credits to defendant. They explain that the new accrual rate does not apply with respect to persons committed for a serious felony. The People are correct that the amendment is of no help to defendant, for reasons we shall show.
As defendant observes, People v. Smith (1989) 211 Cal.App.3d 523 explained the sentencing credits available under section 4019 as in effect when he was sentenced: "'Penal Code section 4019, specifies how prisoners may obtain certain credits. Subdivisions (b) and (c) of that section provide: "for each six-day period in which a prisoner is confined in or committed to a specified facility" one day shall be deducted from his period of confinement for performing labors, and one day shall be deducted for compliance with the rules and regulations of the facility. Subdivision (f) of that section provides "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." (Italics added.)' [Citation.]" (People v. Smith, supra, 211 Cal.App.3d at p. 527; accord, People v. Dieck (2009) 46 Cal.4th 934, 939.)
Defendant says that under the amendment, he would be entitled to two days credit for every two days actually served. As he observes, section 4019, subdivision (f), as set forth in the amendment read: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c)." (Italics added.) (Former § 4019, subd. (f) [amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, p. 4428].) He emphasizes the italicized clause. In so doing, he overlooks the following clause, regarding persons described in paragraph (2) of subdivision (b) or (c). It is that latter clause that controls in this instance.
Section 4019, subdivision (b)(2), as set forth in the amendment, provided with respect to worktime credits: "If the prisoner . . . was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, . . . for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement . . . ." (Former § 4019, subd. (b)(2) [amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, p. 4428].) Section 4019, subdivision (c)(2), as set forth in the amendment, contained a nearly identical provision with respect to good conduct credits. (Former § 4019, subd. (c)(2) [amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, p. 4428].)
According to section 1192.7, subdivision (c)(28), a "serious felony" includes "any felony offense, which would also constitute a felony violation of Section 186.22[.]" Here, defendant was committed for a serious felony—a violation of former section 12031, subdivisions (a)(1) and (a)(2)(C). Former section 12031 provided in pertinent part: "(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street . . . . [¶] (2) Carrying a loaded firearm in violation of this section is punishable, as follows: [¶] . . . [¶] (C) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, . . . as a felony." (Repealed by Stats. 2010, ch. 711, § 4, p. 4036, eff. Jan. 1, 2012.)
A conviction under former section 12031, subdivisions (a)(1) and (a)(2)(C) clearly constitutes a "felony offense, which would also constitute a felony violation of Section 186.22," within the meaning of section 1192.7. Thus, it is a conviction for a "serious felony," making subdivisions (b)(2) and (c)(2) of section 4019, as set forth in the amendment, applicable. Inasmuch as the sentencing credits set forth in subdivisions (b)(2) and (c)(2) of the amendment were the same as the sentencing credits available at the time defendant was sentenced, defendant would not be entitled to any additional sentencing credits under the amendment even if it were applied retroactively.
III
DISPOSITION
The order is affirmed.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.