Opinion
B188600
5-10-2007
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MARTINEZ, Defendant and Appellant.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED
The District Attorney of Los Angeles County filed an information charging defendant and appellant Victor Martinez (defendant) with two counts of violating Penal Code section 288.5, subdivision (a) (the child abuse case). The trial court thereafter amended the information by interlineation to add Count 3, violation of section 288, subdivision (a) (lewd act upon a child under the age of 14). Defendant entered a voluntary plea of no contest to Count 3, and was convicted on that Count. Counts 1 and 2 were dismissed. Defendant was placed on formal, supervised probation, and imposition of sentence on the child abuse case was suspended. Defendants probation included a condition that he was not to consume alcoholic beverages and was to "stay out of places where they are the chief item of sale." Defendant was given 399 days of presentence custody credit, consisting of 267 days of actual credit and 132 days of conduct credit.
All further statutory references are to the Penal Code unless otherwise stated.
As discussed below, the trial court appears to have erroneously calculated defendants conduct credit.
Well over a year after defendant was placed on probation, the trial court found him in violation of the term prohibiting consumption of alcohol. The trial court continued probation on the same terms, except that defendant was ordered "to attend A. A. meetings."
Two years after he was originally placed on probation, the probation department filed a notice that defendant had been deported. The trial court revoked probation and issued a bench warrant. Six months later, defendant appeared in the trial court, which recalled the bench warrant and transferred the issue of his violation of probation in the child abuse case to the court in which a new criminal case was pending against defendant alleging a violation of section 187, subdivision (a) (the murder case).
The probation violation in the child abuse case was trailed pending the outcome of the murder case. The jury in the murder case deadlocked, and the trial court declared a mistrial. After dismissing the jury, the trial court found defendant in violation of his probation, and stated that defendant would be sentenced on the conviction in the child abuse case following the retrial of the murder case.
Prior to the retrial of the murder case, the trial court decided to sentence defendant in the child abuse case. It sentenced defendant to the midterm of six years. Defendant was given 913 days of preentence custody credit comprised of (i) the 399 days of credit previously awarded; (ii) 447 days of additional actual custody credit; and (iii) 67 additional days of conduct credit.
DISCUSSION
On January 17, 2006, defendant filed a notice of appeal. On June 15, 2006, appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant requested and we granted four extensions of time within which to file a supplemental letter brief. The last such extension of time expired without any supplemental filing by defendant. We have examined the entire record with respect to the judgment entered against defendant and are satisfied that defendants appointed counsel has fully complied with her responsibilities and that, with the exception of an issue concerning defendants custody credits discussed below, no arguable issues exist.
Because it appears that the trial court miscalculated defendants custody credits, we requested that the parties file letter briefs on the issue. The Attorney General filed a letter brief that agrees with the following analysis of the issue, and defendants appointed counsel filed a letter brief submitting the issue for decision based on the record before us on appeal.
Our review of the record indicates that on November 30, 2001, defendant was convicted in the child abuse case on Count 3, for violating section 288, subdivision (a). Under section 667.5, subdivision (c)(6), that offense is listed as a "violent felony." Section 2933.1 provides that "any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, . . . ."
When defendant originally was placed on probation on March 15, 2002, the trial court awarded him "good time, work time" or conduct credits of 132 days based on 267 days of actual custody credit for a total custody credit of 399 days. The conduct credit appears to have been calculated under section 4019, not section 2933.1.
When defendant subsequently was sentenced on December 14, 2005, following the probation violation, the trial court added the original 399 days of custody credit to the 447 days of actual custody credit and the 67 days of conduct credit given to defendant for the time served in custody following his September 24, 2004, arrest for violation of section 187, subdivision (a). Based on the foregoing calculation, the trial court awarded defendant 913 days of total custody credit.
Because defendant was convicted of a felony listed in section 667.5, subdivision (c)(6), his conduct credit should have been calculated under section 2933.1 based on 15 percent of his total days of actual custody credit. Defendant was given 267 days of actual custody credit based on his original incarceration from June 22, 2001, to March 15, 2002, relating to the section 288, subdivision (a) charge, and an additional 447 days of actual custody credit based on his subsequent incarceration from September 24, 2004, to December 14, 2005, on the section 187, subdivision (a) charge, for a total of 714 days of actual custody credit. Calculated under section 2933.1, defendants conduct credit should have been 15 percent of 714 days, or 107 days of conduct credit, for a total of 821 days of custody credit.
DISPOSITION
The judgment is affirmed, and the matter is remanded to the trial court with directions to correct the abstract of judgment to reflect that defendant is entitled to 714 days of actual custody credit and 107 days of conduct credit, for a total of 821 days of custody credit.
We concur:
TURNER, P. J.
KRIEGLER, J.