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People v. Gonzalez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Feb 9, 2012
A131835 (Cal. Ct. App. Feb. 9, 2012)

Opinion

A131835

02-09-2012

THE PEOPLE, Plaintiff and Respondent, v. GERMAN GALVAN GONZALEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Napa County Super. Ct. No. CR154761)

Defendant German Galvan Gonzales appeals a judgment following his plea of no contest to conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1)), possession for sale of a controlled substance (Health & Saf. Code, § 11378), and sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)). Defendant also admitted allegations that he suffered a controlled substance prior conviction (Health & Saf. Code, § 11370.2) and served a prior prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to six years in state prison. His counsel has advised that examination of the record reveals no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Counsel informed defendant in writing that a Wende brief was being filed and that defendant had the right to personally file a supplemental brief in this case within 30 days. No supplemental brief has been filed. We conclude the matter must be remanded for a determination of defendant's presentence credits. The judgment is otherwise affirmed.

BACKGROUND

A January 25, 2011 amended information charged defendant with conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1)) (count 1), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (count 2), two counts of possession of a controlled substance (Health & Saf. Code, § 11378) (counts 3 & 4), and three counts of sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (counts 5, 6 & 7). As to counts 1, 4 and 5, it alleged that defendant suffered a controlled substance prior conviction (Health & Saf. Code, § 11370.2) and served a prior prison term (Pen. Code, § 667.5, subd. (b)). As to counts 2 and 7, and it alleged a violation of Penal Code section 1203.073, subdivision (b)(2).

According to the probation officer's report, on December 2, 2010, defendant's brothers, Fabian and Cecilio Gonzalez, were arrested after they attempted to sell approximately one pound of methamphetamine to an undercover agent. Later that day, defendant and his girlfriend were also arrested for charges related to selling methamphetamine to another agent on November 10, and for possession of methamphetamine for sale. Approximately two ounces of methamphetamine was seized during the execution of a search warrant at the residence of defendant and his girlfriend. The probation report stated that defendant was in custody from December 2, 2010 to March 3, 2011, a total of 92 days.

On January 25, 2011, defendant pled not guilty and denied the special allegations. On March 3, pursuant to a negotiated disposition, defendant executed a plea form in which he agreed to plead no contest to counts 1, 4 and 5, and to admit the prior controlled substance conviction and prior prison term allegations. The plea form indicated the plea was "open to the court, for 6 years." It also indicated defendant's understanding that he would be required to register as a drug offender.

At the March 3, 2011 change of plea hearing, the court found defendant's plea was freely and voluntarily entered, there was a factual basis for the plea, and defendant made an intelligent waiver of his trial rights. On the same day the court denied defendant probation and sentenced him to six years in prison as follows:

Count 5: A three-year midterm plus a consecutive three-year term for the controlled substance prior.

Count 1: A two-year midterm, stayed pursuant to Penal Code section 654.

Count 4: A two-year midterm, concurrent with count 5.

The court also struck the one-year term on the prior prison term allegation. It imposed the following fines: a $200 restitution fine (Pen. Code, § 1202.4), a $200 parole revocation fine (Pen. Code, § 1202.45) stayed pending defendant's completion of parole, a $400 lab fee (Health & Saf. Code, § 11372.5), a $120 court security fee (Pen. Code, § 1465.8), and a $90 criminal conviction assessment fee (Gov. Code, § 70373). It ordered defendant to submit DNA samples (Pen. Code, § 296). His notice of appeal raises only postplea issues.

On October 6, 2011, after defendant filed his notice of appeal, the parties stipulated to the matter being calendared for an adjustment of time credits and rewording of the sentencing order. On October 11, following an unreported discussion with counsel, the court ordered the abstract of judgment amended to reflect that the prior (Pen. Code, § 667.5, subd. (b)) was stricken because defendant received the three-year enhancement under Health and Safety Code section 11370.2 for the same prior conviction. The court also ordered defendant's Penal Code section 4019 presentence credits amended to reflect 92 actual days and 92 conduct credits for a total of 184 days of credit.

Hereafter, all undesignated section references are to the Penal Code.

Defendant's offenses were committed on November 10, 2010. Consequently, his presentence custody credits were subject to the version of section 4019 that became effective September 28, 2010. The September 28 version of section 4019 amended that section to conform to the pre-January 25, 2010 amendment, eliminating one-for-one credits. The September 28 version of section 4019, subdivisions (b) and (c) provided that "for each six-day period in which a prisoner is confined in or committed to" a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) Section 4019, subdivision (f) also provided that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) Subdivision (g) expressly provided that the changes in section 4019 would apply to crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.)

Before January 25, 2010, section 4019, subdivisions (b) and (c) provided that "for each six-day period in which a prisoner is confined in or committed to" a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Section 4019, subdivision (f) also provided that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats. 1982, ch. 1234, § 7, p. 4554.)
Effective January 25, 2010, section 4019, subdivision (f) was amended to provide for accelerated credits that accrue at twice the previous rate. (Stats. 2009, 3d Ex. Sess., ch. 28XXX, § 50, eff. Jan. 25, 2010 ["if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody"].) At the same time, subdivisions (b)(2) and (c)(2) of section 4019, were amended to provide that defendants who are required to register as sex offenders, who were committed for a serious felony, or who had a prior conviction for a serious or violent felony were specifically denied eligibility for the accelerated credits. (Stats. 2009, 3d Ex. Sess., ch. 28XXX, § 50, eff. Jan. 25, 2010.)

Section 4019 was amended three times in 2011. (Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, operative Oct. 1, 2011; Stats. 2011, ch. 39, § 53, eff. June 30, 2011, operative Oct. 1, 2011; Stats. 2011, 1st Ex. Sess., ch. 12X, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011.) Those amendments are not at issue here.

Pursuant to the operative September 28, 2010 version of section 4019, "The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits." (People v. Culp (2002) 100 Cal.App.4th 1278, 1283 [calculating credits under pre-Jan. 25, 2010 version of § 4019].) Based on this calculation, defendant was entitled to 138 days of section 4019 presentence credit, not 184 days as awarded by the court. Thus, the court erroneously awarded defendant an excess of 46 days of presentence custody credit.

We informed the parties that the court's presentence credits award does not reflect the September 28, 2010 amendment to section 4019 and invited them to provide supplement briefing thereon.

The Attorney General's supplemental brief states that presentence credits should have been awarded pursuant to the September 28, 2010 version of section 4019, and that the court awarded defendant an excess of 46 days of presentence custody credit.

Defendant's counsel's supplemental brief concedes the court erroneously awarded defendant 46 days of presentence custody credit pursuant to September 28, 2010 version of section 4019. With no citation to the record, he asserts that the court "should have referenced section 2933, subdivision (e)(1)." Counsel correctly notes that effective September 28, 2010, section 2933, subdivision (e)(1) provided: "Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner." (Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) He asserts the September 28 version of section 2933, subdivision (e)(1) applies and, pursuant thereto, the additional 46 days of presentence custody credit were properly awarded.

As of October 1, 2011, section 2933, subdivision (e) was deleted in its entirety. (Stats. 2011, 1st Ex. Sess., ch. 12X, § 16, eff. Sept. 21, 2011, operative Oct. 1, 2011.)
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Defendant's assertion that the 46 days of presentence credit were awarded under the September 28, 2010 version of section 2933, subdivision (e)(1) is unsupported by the record and is therefore speculative. Based on the record before us, the court erroneously awarded defendant an excess of 46 days of presentence custody credit under the September 28 version of section 4019.

DISPOSITION

The matter is reversed and remanded for a redetermination of defendant's presentence custody credits. The judgment is otherwise affirmed.

SIMONS, J. We concur. JONES, P.J. BRUINIERS, J.


Summaries of

People v. Gonzalez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Feb 9, 2012
A131835 (Cal. Ct. App. Feb. 9, 2012)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GERMAN GALVAN GONZALEZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Feb 9, 2012

Citations

A131835 (Cal. Ct. App. Feb. 9, 2012)