Opinion
E051396 Super.Ct.No. FWV037571
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. RAMONA MICHELLE HERNANDEZ MARTINEZ, Defendant and Appellant.
Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed as modified.
Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
In 2006, a jury convicted defendant and appellant Ramona Michelle Hernandez Martinez of theft (Pen. Code, § 484, subd. (a)); the trial court found that defendant had three prior theft convictions so that defendant's theft conviction was deemed to be theft with a prior theft conviction (former § 666). The trial court also found that defendant had a prison prior (§ 667.5, subd. (b)) based upon a fourth prior theft conviction. Defendant had been released on her own recognizance but failed to appear for her sentencing.
Undesignated statutory references are to the Penal Code.
On July 19, 2010, after defendant had been brought into custody on another theft case, the trial court imposed a total prison term of four years consisting of the upper term of three years for the theft conviction with an additional one year consecutive for the prison prior. She was given 70 days of custody credit consisting of 36 actual days and 34 days of conduct credit. This was based upon local custody time of 34 days from June and July of 2010, and two days from her booking in 2006.
Defendant initially contended that her conviction for theft with a prior (former § 666) was not authorized due to a 2010 amendment to section 666, and that she was entitled to two additional days of section 4019 conduct credit. After reviewing the respondent's brief, defendant conceded her section 666 contention. We modify the judgment to award the two additional days conduct credits and affirm.
PENAL CODE SECTION 666Effective September 9, 2010, section 666 was amended to require three prior theft convictions rather than one. (People v. Vinson (2011) 193 Cal.App.4th 1190, 1194 [§ 666 amendment applies retroactively].) Defendant initially contended this amendment was retroactive and that her conviction should be reversed because only one prior conviction had been proven. On the basis of Vinson, the People agreed that the amendment was retroactive. However, the People also correctly noted that the trial court had actually found that defendant had three prior theft convictions (four with the additional prior underlying the prison prior). Thus, as subsequently conceded by defendant, reversal of the conviction is not warranted because defendant does have the requisite number of prior convictions under both current and former section 666.
CONDUCT CREDITS
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credit for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Prior to January 25, 2010, section 4019 provided for "two days [of conduct credit] for every four days [of] actual presentence custody." (Duff, at p. 793.) An amendment effective January 25, 2010, increased the ratio to provide for the granting of two days of conduct credit for every two days of presentence custody for qualified defendants. (Former § 4019, subd. (f).)
Defendant contends: (1) because the amendment was operative on the date of her sentencing all of her credits should have been calculated under the January 25, 2010 version of section 4019, and (2) that the January 25, 2010 amendment should apply retroactively. The People contend: (1) the trial court had "no reason" to award additional conduct credit because the two days for which credit was not granted were served prior to the amendment; (2) neither the trial court's statements nor the probation report suggest "an attempt to use" two different formulas; and (3) 34 days of conduct credit for 36 days of custody "appear[s] to reflect the formula dictated by the January 25, 2010, amendments." We hold that defendant's conduct credits should have been calculated entirely using the formula provided in the version of section 4019 in effect at the time of sentencing. Accordingly, we do not address the retroactivity issue.
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere [], 'prior to the imposition of sentence' may also be eligible for good behavior credits . . . . '[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed "[a]t the time of sentencing." (Cal. Rules of Court, rule 4.310.) "[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]" (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler).)
"Conduct credits for presentence custody are credited to the defendant's term of imprisonment 'in the discretion of the court imposing the sentence.' [Citation.] It is the duty of the sentencing court to determine 'the total number of days to be credited . . .' for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits. [Citation.]" (Duesler, supra, 203 Cal.App.3d at p. 276.) "If the record fails to show that defendant is not entitled to such credits . . . he shall be granted them." (People v. Johnson (1981) 120 Cal.App.3d 808, 815 (Johnson).) Thus, section 4019 credits are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.
The January 25, 2010 version of section 4019 contains no provision for a two-tiered division of presentence custody credits, and was the only version of section 4019 operative at the time of defendant's sentencing. Thus, the trial court's discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because "the record fails to show that defendant is not entitled [to conduct credits], [s]he shall be granted them" (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.
Regardless of the People's contentions that there was no explicit suggestion of using of two different formulas, or that 34 days of conduct credit for 36 days of custody reflects the use of the proper formula, the trial court calculated the conduct credits incorrectly. Because there was no showing that defendant was not entitled to conduct credits, the trial court was required to "take the number of actual custody days [34+2] and divide by [two] (discarding any remainder) which leaves [18]. We then multiply the result by 2 . . . resulting in a total of [36] days of conduct credit. To arrive at the total amount of credit to which [defendant] is entitled (custody plus conduct), we add the custody credit [36 days] to the conduct credit [36 days], giving us a total of [72] days." (In re Marquez (2003) 30 Cal.4th 14, 26 [edited for defendant's numbers and the ratio in the Jan. 25, 2010 version of § 4019].)
DISPOSITION
The judgment is modified so that defendant has presentence credit for time served of 72 days, consisting of 36 days of actual custody and 36 days of section 4019 conduct credit. The superior court clerk is directed to reflect the modification in a new minute order and an amended abstract of judgment, and then forward certified copies of those documents to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
KING
J.
CODRINGTON
J.