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People v. Forte

California Court of Appeals, Fourth District, First Division
Apr 29, 2009
No. D053249 (Cal. Ct. App. Apr. 29, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ROBERT FORTE, Defendant and Appellant. D053249 California Court of Appeal, Fourth District, First Division April 29, 2009

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of San Diego County Nos. SCD184255, SCD206931 & SCD203003, John M. Thompson, Judge.

AARON, J.

In 2004 in case No. SCD184255, Robert Forte entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)). In December, the court suspended imposition of sentence, placed Forte on three years' probation, imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), and imposed and stayed a $200 probation revocation fine (§ 1202.44). In January 2007, the court revoked probation. In August, in case No. SCD206931, Forte entered a negotiated guilty plea to commercial burglary (§ 459) and admitted having served a prior prison term (§ 667.5, subd. (b)) and having incurred a strike conviction (§ 667, subds. (b)-(i)). In April 2008, in case No. SCD203003, Forte entered a negotiated guilty plea to robbery (§ 211) with personal infliction of great bodily injury (GBI) (§ 12022.7, subd. (a)) and admitted having served a prior prison term, and having a prior strike conviction and a prior serious felony conviction (§ 667, subd. (a)(1)).

All further statutory references are to the Penal Code.

In June 2008, the court sentenced Forte to nine years in prison. In case No. SCD203003, the court dismissed the GBI allegation and the prison prior and sentenced Forte to four years (twice the lower term) for robbery, and five years for the serious felony prior. In case No. SCD206931, the court dismissed the prison prior and sentenced Forte to a concurrent four-year term (twice the middle term). In case No. SCD184255, the court imposed a concurrent two-year middle prison term. Forte appeals.

Forte contends that the $250 restitution fine the court imposed in 2008 in case No. SCD184255 must be stricken because the court imposed a $200 restitution fine when it granted probation. He also contends that the $250 parole revocation fine (§ 1202.45) must be reduced to $200. (People v. Chambers (1998) 65 Cal.App.4th 819; People v. Downey (2000) 82 Cal.App.4th 899, 921-922; People v. Johnson (2003) 114 Cal.App.4th 284, 306-308.) The People properly concede both points. We accordingly modify the judgment to reflect a $200 restitution fine and a $200 parole revocation fine in place of the $250 fines in case No. SCD184255.

In case No. SCD184255 the court awarded 677 days' credit plus 88 days' section 2933.1 credit, for a total of 765 days. Forte contends that the court should have awarded him an additional five days' credit. He notes that in case No. SCD184255, his 19 days in custody from July 18 to 27, 2004, and from April 26 to May 4, 2006, did not overlap his custody time for the violent felony in case No. SCD203003, so the credits for those periods are not subject to the 15 percent limitation of section 2933.1, subdivision (c). Rather, he claims, the credits fall under section 4019. The People properly concede the point. The People state:

"The two short periods of pre-sentence confinement in Case Number SCD184255, being 10 days (July 18, 2004 to July 27, 2004), and 9 days (April 26, 2006 to May 4, 2006), spent prior to the 570 days of confinement in the violent felony (robbery) case in case SCD203003 is subject to a work-time credit calculation under... section 4019, not a calculation under... section 2933.1, subdivision (c). (See... § 4019;... § 2933.1, subd. (c); In re Reeves (2005) 385 Cal.4th 765, 772-773, 778-780; People v. Ramos (1996) 50 Cal.App.4th 810, 815-817.) The 19 days of confinement on a non violent offense (possession of drugs), before the confinement on the violent offense (robbery), did not qualify for the... section 2933.1, subdivision (c) 15% limitation in work-time credits. (See People v. Williams (2000) 79 Cal.App.4th 1157, 1175-1176.) A defendant's pre-sentence custody credit under... section 4019 is calculated by dividing the actual days in custody by four, rounding down to the nearest whole number, and multiplying by two. (People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Accordingly, appellant's pre-sentence 19 actual custody days at issue, divided by four and multiplied by two equals 8 days of work-time credit under... section 4019. [¶] Thus, appellant should have been awarded 8 work-time credits under... section 4019, instead of 3 work-time credits under... section 2933.1, subdivision (c), as to the 19 actual days in question. The December 15, 2004, court order, and the May 4, 2006 court order in Case Number SCD184255 were consistent in that 8 day work-time credits were awarded under... section 4019."

DISPOSITION

The judgment is modified in case No. SCD184255 to reflect a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole revocation fine (§ 1202.45) in place of the $250 fines, and 677 days' credit, plus eight days' section 4019 credit, plus 85 days' section 2933.1 credit for a total of 770 days' credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

WE CONCUR: McConnell, P. J., Haller, J.


Summaries of

People v. Forte

California Court of Appeals, Fourth District, First Division
Apr 29, 2009
No. D053249 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Forte

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT FORTE, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 29, 2009

Citations

No. D053249 (Cal. Ct. App. Apr. 29, 2009)