Opinion
F059961 Super. Ct. No. DF009537A
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. SPENCER ULISES TASAYCO, Defendant and Appellant.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE COURT
Before Wiseman, Acting P.J., Levy, J., Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, for Plaintiff and Respondent.
A jury convicted appellant, Spencer Ulises Tasayco, of two felonies, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3), and appellant pled no contest to misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 2) and admitted a special allegation that he refused to submit to chemical testing (Veh. Code, § 23612). On each of counts 1 and 3 the court suspended imposition of sentence, and placed appellant on three years' probation on condition he serve 202 days in county jail, with credit for time served, consisting of 116 days of actual time credit (Pen. Code, § 2900.5) and 86 days of conduct credit (§ 4019). On count 2, the court denied probation and sentenced appellant to county jail with credit for time served.
All further statutory references are to the Penal Code.
On appeal, appellant contends (1) the sentence imposed violated the section 654 proscription against multiple punishment, and (2) the judgment should be modified to award appellant an additional 30 days of conduct credit. We will modify the judgment to award appellant additional presentence credit, and otherwise affirm.
FACTS
On September 13, 2009, California Highway Patrol Officer Ryan Duran stopped a sport utility vehicle for failing to stop at a stop sign. Appellant was the driver. Later, at the Delano Police Station, Officer Duran searched appellant and found in appellant's shirt pocket a five-dollar bill. In the center of the folded bill was what was later determined to be 95 milligrams of a substance containing methamphetamine.
DISCUSSION
Section 654Section 654 "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) Appellant contends his convictions of transportation of methamphetamine and possession of methamphetamine were based on an indivisible course of conduct, and therefore, under section 654, "the sentence for the possession charge must be stayed." The People concede the point. We cannot accept the concession.
Section 654 provides, in relevant part: "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term for imprisonment, but in no case shall the act or omission be punished under more than one provision."
On each of counts 1 and 3, the court suspended the imposition of appellant's sentence and granted probation. Where imposition of sentence is suspended and a defendant is placed on probation—even if the probation is conditioned on jail time—there is no punishment within the meaning of section 654 and thus, the statute does not apply. (People v. Wittig (1984) 158 Cal.App.3d 124, 137 (Wittig); People v. Stender (1975) 47 Cal.App.3d 413, 425 (Stender), overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240.) As the court stated in Stender, at p. 425, "Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of Penal Code section 654." The issue of the applicability of section 654 will not arise unless and until appellant is sentenced for his crimes. (Wittig, at p. 137.)
Conduct Credit
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Prior to January 25, 2010 (January 25), section 4019 provided for "two days [of conduct credit] for every four days the defendant is in actual presentence custody." (People v. Duff (2010) 50 Cal.4th 787, 793.) Section 4019 was amended effective January 25, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, and has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue two days of conduct credit for every two days of presentence custody. (Amended § 4019, subd. (f).)
Section 4019 was amended again effective September 28, 2010. (Stats. 2009-2010, ch. 426, § 2.) Hereafter, we refer to pre-January 25 section 4019 as former section 4019, the version of section 4019 in effect from January 25 to September 27 as amended section 4019, and post-September 28 section 4019 as current section 4019. Because current section 4019 applies only to crimes committed after its effective date, it has no bearing on the instant case. (See current § 4019, subd. (f).) We note that on April 4, 2011, section 4019 was amended yet again. (Stats. 2011-2012, ch. 15, § 482.) However, the operation of this latest amendment is conditional on the creation and funding of a community corrections program. (Id. at § 636.)
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According to the report of the probation officer, upon which the court relied in determining appellant's presentence credits, appellant's time in presentence custody consisted of 58 days prior to January 25 and 58 days on and after that date. Appellant was sentenced in March 2010. The court calculated conduct credit under amended section 4019 only for appellant's time in custody served on and after January 25. The court calculated appellant's conduct credit for his pre-January 25 time in custody under former section 4019.
Appellant contends the trial court erred in failing to calculate conduct credit for his entire period of presentence custody under the version of the statute in effect at the time of sentencing: amended section 4019. Respondent defends the two-tiered calculation utilized by the trial court. Respondent contends: "Appellant's pre-January 25 ... conduct credits were correctly calculated pursuant to the old formula and he is not entitled to recalculation because the amendment to section 4019 should not be applied retroactively." We hold that, because amended section 4019 was in effect at the time of sentencing, the trial court should have awarded conduct credits for the entirety of appellant's presentence custody pursuant to the terms of amended section 4019. (See People v. Grant (1999) 20 Cal.4th 150, 157 ["A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment"].)
"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, fn. omitted.) 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).)
Section 4019 conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available "'"all or nothing."'" (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814 (Johnson).)Instead, they 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." (Johnson, supra, at p. 815.) 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.
Amended section 4019 contains no provision for a two-tiered division of presentence custody credits, and it was the only version of section 4019 operative at the time of appellant'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 appellant had been in custody while the former version of section 4019 had provided fewer credits. Because "the record fails to show that [appellant] is not entitled [to conduct credits], 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.
Accordingly, because appellant was sentenced after January 25, and because he served a total of 116 days in local custody prior to sentencing, the court should have awarded him, in addition to 116 days of actual time credit, 116 days of conduct credit under amended section 4019.
DISPOSITION
The judgment is modified to provide that appellant is awarded a total of 232 days of presentence credit (116 days of actual time credit plus 116 days of conduct credit). In all other respects the judgment is affirmed.