Opinion
C087676
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE MORENO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10F06494)
A jury found defendant Jose Moreno guilty of numerous crimes; the trial court sentenced him to 19 years four months in state prison.
On appeal, defendant contends the trial court incorrectly calculated his presentence custody credits and denied his requests to correct. We agree and modify the judgment to increase the custody credit award. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts underlying defendant's convictions is not necessary for resolution of this appeal.
On November 8, 2012, defendant was charged with 19 felonies and two misdemeanors (counts 17 and 21) for crimes he committed between March 2010 and January 2011.
On December 3, 2012, a jury found defendant guilty as charged.
On December 26, 2012, the probation department determined defendant would serve 355 days in custody prior to sentencing.
On January 4, 2013, the trial court sentenced defendant to an aggregate term of 19 years four months in state prison on his felony convictions. On the misdemeanor convictions, the trial court sentenced defendant to two consecutive terms: 180 days in county jail on count 17, and 175 days in county jail on count 21. The court also gave defendant credit for time served on the misdemeanor sentences: 120 days in actual custody on count 17, plus 60 days for conduct, and 117 days in actual custody on count 21, plus 58 days for conduct.
The trial court then awarded defendant 118 days of actual custody credit, plus 58 days of conduct credit, for a total of 176 days of presentence custody credit to apply toward his felony sentence.
DISCUSSION
On appeal, defendant contends the trial court incorrectly calculated his presentence custody credits. Defendant claims he should have received two-for-two credits for the 355 days he was in custody prior to sentencing based on the most favorable version of Penal Code section 4019 in operation during the time period he committed his crimes. We agree.
Undesignated statutory references are to the Penal Code.
I
Section 4019
A. The Law and Defendant's Claim
Under section 4019, a prisoner in custody may earn credit against his or her period of confinement under certain conditions.
Prior to January 25, 2010, the former version of section 4019 provided that a defendant could accrue conduct credits at the rate of two days for every four-day period of custody. (Former § 4019, subds. (b) & (c), as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, section 4019 was amended to provide that, with exceptions not relevant here, certain prisoners may earn presentence custody credit at an increased rate (two days of conduct credit for every two days of actual custody time). (Former § 4019, subds. (b)(1) & (c)(1), as amended by Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.)
Effective September 28, 2010, section 4019 was amended to restore conduct credit accrual for all local prisoners to the prior existing rate of two days of credit for every four days in county jail. (Former § 4019, subds. (b) & (c), as amended by Stats. 2010, ch. 426, § 2.) Also effective September 28, 2010, section 2933 was amended to provide day-for-day conduct credits for qualifying defendants in local presentence custody who were sentenced to state prison. (Former § 2933, subd. (e)(1), as amended by Stats. 2010, ch. 426, § 1; People v. Garcia (2012) 209 Cal.App.4th 530, 538.)
"Effective October 1, 2011, as part of the realignment legislation, the former section 2933, subdivision (e) presentence conduct credits provision was repealed. Section 4019 returned as the standard for awarding presentence conduct credits. (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 16, § 35.)" (People v. Garcia, supra, 209 Cal.App.4th at p. 539.) This meant that, under section 4019, a defendant in local presentence custody could once again accrue conduct credit at the rate of two days for every two-day period, also known as two-for-two credits. This is the credit scheme that defendant argues applies to his credit calculation. The Attorney General completely ignores this claim.
The Attorney General also observes that "[i]nexplicably, the abstract of judgment does not reflect the disposition of the misdemeanor counts. But felony abstracts of judgment, by definition, are not required to include misdemeanor counts.
In its present form, section 4019, subdivision (h) provides: "The changes to this section shall . . . apply prospectively and shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by prior law."
A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
B. Analysis
Defendant committed his offenses between March 2010 and January 2011. During this period of time, there were two operative versions of section 4019: the January 25, 2010, version and the September 28, 2010, version. Under the October 1, 2011, amendment, the offense date triggers the application of section 4019. In People v. Ramirez (2014) 224 Cal.App.4th 1078, the Court of Appeal, Sixth Appellate District applied the rule of lenity to apply section 4019 where the defendant had committed crimes both before and after October 1, 2011. The appellate court held that a defendant who is sentenced for offenses committed both before and after October 1, 2011, is entitled to conduct credits at the more favorable rate. (Ramirez, at pp. 1085-1086.)
Here, the parties agree defendant was in custody for a total of 355 days prior to sentencing. Thus, applying the two-for-two accrual method, defendant is entitled to 355 days of actual custody and 354 days of conduct credit, for a total of 709 days of presentence custody credit. (See People v. Chilelli (2014) 225 Cal.App.4th 581, 588 [under a two-for-two accrual method, "there can be only an even number of presentence conduct credits"].)
We modify the judgment accordingly.
II
Section 654In his reply brief, defendant claims in passing that the trial court should have stayed execution of sentence on the misdemeanor counts pursuant to section 654. " 'Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination.' [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.]" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.) The judgment on appeal is presumed correct; it is defendant's burden to affirmatively demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Defendant makes no argument specific to this case in support of his claim. Accordingly, he has failed to meet his burden on appeal.
DISPOSITION
The judgment is modified to award defendant 355 days of custody credit and 354 days of conduct credit, for a total of 709 days of presentence custody credit. Custody credit totaling 354 days was applied toward defendant's two misdemeanor convictions on counts 17 and 21, leaving defendant a total of 355 days presentence custody credit toward his felony sentence. The trial court is directed to issue an amended abstract of judgment reflecting this modification.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Robie, J.