Opinion
D058544
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS NEGRON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 53 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS241057)
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
In August 2010 in San Diego County Superior Court case No. SCS241057, Jorge Luis Negron pled guilty to being in possession of a controlled substance, heroin, while an inmate at a state prison (Pen. Code § 4573.6). (All further statutory references are to the Penal Code.) The plea agreement specified that he serve a two-year prison term to be served consecutive to the term he was already serving in case No. SCS227735 for being a felon in possession of a firearm (§ 12021, subd. (e)(1)).
On appeal, Negron asserts that he is entitled to retroactive application of the more beneficial calculation of presentence credits pursuant to the January 25, 2010 amendment to section 4019 as to his possession of a firearm conviction because when he pled guilty to the new charge he committed while in state prison that constituted a "new sentencing" for purposes of his original conviction. We affirm.
FACTUAL BACKGROUND
As Negron pled guilty to the charge in case No. SCS241057 prior to a preliminary hearing, there is no testimony concerning the facts underlying that crime. At the plea hearing, Negron admitted as the factual basis for his plea that he had possessed a usable quantity of heroin while an inmate serving time at Donovan State Prison.
DISCUSSION
A. Background
In May 2009 Negron pled guilty in case No. SCS227735 to possession of a firearm by a felon. The abstract of judgment for the 2009 case indicates that he was sentenced to the middle term of two years and was awarded 72 days of presentence credits, consisting of 48 days of actual custody and 24 days of section 4019 conduct credits. Negron committed the instant offense in November 2009 and negotiated a two-year sentence to be served consecutive to the two-year sentence in the 2009 case. In the new offense, he was sentenced in August 2010. Because Negron was already in custody for the original offense, he did not receive any presentence credits for the instant offense. (People v. Bruner (1995) 9 Cal.4th 1178, 1191, 1193-1194 [a defendant is not entitled to credit for presentence confinement unless he shows that the conduct that led to his conviction was the sole reason for his loss of liberty during the presentence period].)
B. Analysis
With the amendment of section 4019 effective January 25, 2010, defendants are entitled to a more beneficial formula for presentence conduct credits: two days of conduct credits for every two days of actual custody. (§ 4019, amended by Stats. 2009, 3rd Ex. Sess., 2009-2010, ch. 28, § 50, pp. 4427-4428.)
On appeal, Negron asserts that the current case resulted in a "new sentencing" for his original case, and thus he is entitled to a retroactive application of the new more beneficial formula of the January 25, 2010 amendment of section 4019 to his original offense because he was sentenced for the instant offense in August 2010, after the January 25, 2010 amendment date.
However, there was no new sentencing for his original offense. Rather, the May 2009 case became final long before the instant offense in November 2009 and sentencing in August 2010. Negron did not appeal from the original 2009 conviction and sentence and it thus became final on July 18, 2009. (See Cal. Rules of Court, rule 8.308(a); § 1417.1, subd. (a).)
There is no statutory or case authority to recalculate presentence credits in a case for which presentence credits have already been awarded and which become final before the instant crime was committed. Moreover, because he committed the instant offense while in state prison, Negron was not entitled to any additional credits under section 4019.
In support of his position, Negron cites two cases, People v. McCart (1982) 32 Cal.3d 338 and People v. Venegas (1994) 25 Cal.App.4th 1731, for the proposition that when an inmate commits a new crime while in prison, "that offense essentially becomes part of the original case, and the sentencing judge imposes a single new sentence for the original and current offenses." However, those cases do not hold that the sentencing hearing on the new offense "reopens" the sentencing on an older offense that has become final. Rather, People v. McCart, supra, 32 Cal.3d at page 343 merely held that courts compute a single term of imprisonment for all convictions of felonies committed in prison and the convictions are to be served consecutively. People v. Venegas held that courts must impose a single aggregate sentence using the principal-subordinate scheme even though the defendant's in-prison offense and earlier conviction occurred years apart. (People v. Venegas, supra, at p. 1713.)
Neither case stands for the proposition that there is a new sentencing for the original crime Negron committed in 2009, and which was final at the time of the in-prison offense, that would require the court to recalculate presentence credits as to the original offense.
DISPOSITION
The judgment is affirmed.
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NARES, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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McDONALD, J.