Opinion
B164274.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ANGEL ISAAC REMIJIO, Defendant and Appellant.
Sandra L. Waite, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, and Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.
Angel Isaac Remijio appeals the judgment entered after conviction by jury of four counts of first-degree burglary and two counts of second-degree burglary. (Pen. Code, § 459.) The trial court sentenced Remijio to a term of seven years and four months in state prison. Remijio contends the trial court erroneously limited his presentence custody credit to 15 percent. We agree and order the abstract of judgment modified.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence adduced at trial established Remijios commission of a series of burglaries in the San Pedro area on May 24, 2002. At sentencing, the trial court granted presentence custody credit consisting of 270 actual days and conduct credit at the rate of 15 percent, pursuant to section 2933.1, in the amount of 31 days.
CONTENTION
Remijio contends the 15 percent limitation on conduct credit found in section 2933.1 does not apply to either his presentence or post-sentence conduct credit because he was not convicted of a violent felony.
DISCUSSION
1. The People failed to plead and prove that Remijio committed a violent felony.
Section 2933.1, subdivision (a), places a 15 percent limit on the amount of conduct credit that may be earned by a person convicted of a violent felony listed in section 667.5, subdivision (c). First-degree burglary is a violent felony under section 667.5, subdivision (c), "wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).)
The People concede the information in this case did not allege that any of Remijios burglaries were violent felonies within the meaning of section 667.5, subdivision (c)(21), or that a person other than an accomplice was present in the residence during the burglary. Nonetheless, the People object to the relief requested by Remijio on procedural and substantive grounds.
The People first argue Remijio did not present the custody credit issue to the trial court as required by section 1237.1, and, where the only issue raised on appeal seeks additional presentence custody credit, the appeal should be dismissed (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428).
Although this is true in the usual case, the issue presented here affects not only Remijios presentence custody credit but also the post-sentence credits. Additionally, the matter is a question of law and can be resolved at this point without the need for further proceedings in the trial court. Accordingly, it appears appropriate to address the merits of the issue on appeal, even though Remijio has not raised any other contentions.
The People next assert the evidence adduced at trial indicates the victim in count one testified her father was at home when the burglary took place. Also, at sentencing, defense counsel conceded Remijios custody credits were subject to the 15 percent limitation and defense counsel helped the trial court compute the credits.
The fact the evidence adduced at trial supported the credit limitation does not relieve the People of the burden, imposed by section 667.5, subdivision (c)(21), to plead and prove that an individual other than an accomplice was present in the residence during the burglary. People v. Mancebo (2002) 27 Cal.4th 735, appears to be directly on point.
In Mancebo, the defendant was charged with violent sex crimes against two victims. In order to subject the defendant to an enhanced sentence of 25 years to life under the One Strike Law (§ 667.61), the information alleged two qualifying circumstances as to each victim, namely, gun use and kidnapping as to one victim, and gun use and binding of the victim as to the other. (§ 667.61, subds. (a), (e).) After conviction, the trial court imposed the One Strike term of 25 years to life and imposed a consecutive 10-year term for personal use of a firearm under section 12022.5, subdivision (a). The trial court reasoned it could substitute the qualifying factor of multiple victims (§ 667.61, subd. (e)(5)), for the gun use factor, even though the multiple victim factor had not been pleaded and proved, because the jurys verdict necessarily indicated it had found the facts underlying the multiple victim factor true. This preserved the firearm use finding as the basis for an additional 10-year term under section 12022.5, subdivision (a), as to each victim. (People v. Mancebo, supra, 27 Cal.4th at p. 740.)
Mancebo held the multiple victim factor could not be used because it had not been "alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact" as required by section 667.61, subdivision (i). Thus, the 10-year enhancement under section 12022.5, subdivision (a), had to be stricken. Although the defendant was on notice he was being charged with offenses against two victims, he did not have notice the multiple victim enhancement would be sought. (People v. Mancebo,supra, 27 Cal.4th at p. 739.)
Applying Mancebo to this case, the failure of the People to plead and prove that Remijios burglaries were violent felonies within the meaning of section 667.5, subdivision (c)(21), precludes limitation of Remijios conduct credits by section 2933.1.
Remijios presentence conduct credit properly is calculated under section 4019 by dividing the days of actual custody by four, and multiplying the integer portion of the quotient by two. (People v. Caceres (1997) 52 Cal.App.4th 106, 110.) Based on service of 270 actual days, Remijio should have received 134 days of conduct credit, for a total of 404 days of presentence credit. We shall order the abstract of judgment modified to reflect this total.
DISPOSITION
The judgment is modified to reflect an award of presentence custody credit of 404 days consisting of 270 actual days and 134 days of conduct credit and, as so modified affirmed. The clerk of the superior court shall prepare and forward to the Department of Corrections an amended abstract of judgment.
We concur: CROSKEY, J. and ALDRICH, J. --------------- Notes: Subsequent unspecified statutory references are to the Penal Code.