Opinion
F061380
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. JUVENAL G. MARTIN, Defendant and Appellant.
Grace Lidia Suarez, 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, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VCF177516)
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J. and Kane, J.
APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara and Valeriano Saucedo, Judges.
Judge O'Hara accepted defendant's plea; Judge Saucedo denied defendant's "Motion to Correct Pre-State Prison Credit Calculation ...."
Grace Lidia Suarez, 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, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
On April 26, 2007, appellant Juvenal G. Martin pled no contest to violating Penal Code section 245, subdivision (a)(2) (assault with a deadly weapon) and section 459 (second degree burglary) and admitted a weapons enhancement (§ 12022.5, subds. (a) & (d)) in exchange for a stipulated five-year sentence.
All statutory references are to the Penal Code unless otherwise noted.
On June 8, 2007, appellant was sentenced to a term of five years. He was given credit for 135 days spent in actual custody, 33 days of "good time" and 33 days of "work time," for a total of 201 days.
On August 10, 2010, appellant filed a motion for correction of the credit calculation based on the legislative amendments to section 4019 that took effect on January 25, 2010. He requested credit of 147 actual days and 135 additional good time/work time days. The trial court denied his motion.
Appellant's sole issue on appeal is his claim that he is entitled to additional conduct credits pursuant to amended section 4019. He contends he is entitled to the retroactive application of the provision because it ameliorates punishment. (People v. Hunter (1977) 68 Cal.App.3d 389.)
Appellant acknowledges that the question of whether the amendment to section 4019 is entitled to retroactive application is currently before the California Supreme Court.
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By its own terms, amended section 4019 only applies to eligible prisoners who were neither required to register as sex offenders nor were committed for serious felonies (§ 1192.7) nor had been convicted of serious or violent felonies (§ 667.5). (Former § 4019, subds. (b)(2) & (c)(2).) Since appellant pled no contest to assault with a firearm and second degree burglary and admitted that he personally used a firearm, his offenses qualify as "'serious felon[ies]'" (§ 1192.7, subd. (c)(8)), which render him ineligible for the additional credit days described in amended section 4019. Thus, even if the statute was to be applied retroactively, it would not apply to him.
In examining the record in this case, we noticed two typographical errors in the abstract of judgment. We will direct the trial court to correct the errors.
DISPOSITION
The trial court is directed to correct the abstract of judgment ("2345(a)(2)" should be "245(a)(2)" and "459(b)" should be "459") and forward an amended copy to the appropriate authorities. The judgment is otherwise affirmed.