Opinion
C086767
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DANE CASEY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF18-0001)
Defendant Michael Dane Casey pleaded no contest to two counts of oral copulation or sexual penetration of a child under the age of 10, (Pen. Code, § 288.7, subd. (b).) The trial court imposed a 30 year-to-life state prison term, with 81 days of actual credit and no conduct credits.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends he was entitled to conduct credits under section 2933.1. The Attorney General agrees. So do we.
We dispense with the facts of defendant's crime as they are unnecessary to this appeal. --------
When defense counsel asked for 15 percent conduct credits at sentencing, the trial court questioned whether defendant was entitled to presentence conduct credits because he was being sentenced to a life term. Defense counsel said defendant was entitled to 15 percent conduct credits and the prosecutor agreed. The trial court trailed the matter for further research. When it later addressed the matter, the trial court denied conduct credits, citing In re Oluwa (1989) 207 Cal.App.3d 439 (Oluwa) and In re Cervera (2001) 24 Cal.4th 1073 (Cervera). During the pendency of this appeal, defendant's appellate counsel sent a Fares letter (People v. Fares (1993) 16 Cal.App.4th 954) requesting presentence credits, and filed a motion for correction of presentence custody credits, which the trial court denied.
The trial court is wrong. Defendants are generally entitled to presentence credit under either section 2933.1 or section 4019. Since defendant was convicted of two violent felonies he is entitled to 15 percent conduct credits under section 2933.1. (§§ 2933.1, 667.5, subd. (c)(7).) The fact that a crime is punishable by life in prison does not preclude the award of presentence conduct credits. (See People v. Thomas (1999) 21 Cal.4th 1122, 1125, 1127-1130; People v. Brewer (2011) 192 Cal.App.4th 457, 462-464; People v. Philpot (2004) 122 Cal.App.4th 893, 907-908.) Some statutes preclude presentence conduct credits for certain offenses; defendant's crimes are not amongst those. (See §§ 2933.2 [murder], 2933.5 [two prison priors and convicted of certain specified crimes].) The cases cited by the trial court are inapposite, as they address limits on conduct credits for time spent in prison, rather than presentence credit. (See Cervera, supra, 24 Cal.4th at p. 1076; Oluwa, supra, 207 Cal.App.3d at p. 442.)
15 percent of 81 is 12. We shall modify the judgment to award defendant 12 days of presentence conduct credit.
DISPOSITION
The judgment is modified to award defendant 12 days of presentence conduct credit, for a total of 93 days of presentence credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation.
RAYE, P. J. We concur: DUARTE, J. RENNER, J.