Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06829
CANTIL-SAKAUYE, J.
Defendant Matthew John Nemanic believed Richard Rowden to be a “vampire” who was draining his “life force” through “astral projection and actual physical manifestation.” To ensure that Rowden could no longer prey on defendant and others, defendant brought a loaded handgun to Rowden’s home with the intention of killing him. After entering the home uninvited and pointing the gun at one of the residents, defendant was pushed out of the home before anyone was injured or killed.
Pursuant to a negotiated plea agreement, defendant pled guilty to first degree burglary and admitted to being armed with a firearm during commission of the crime. The trial court sentenced defendant to seven years in state prison (the upper term of six years on the burglary plus a one-year enhancement for the use of a firearm). The trial court also awarded defendant 337 days credit for time served. Defendant’s contentions on appeal are threefold. First, defendant claims that the trial court abused its discretion in denying probation. Second, defendant claims that the trial court erred in imposing the upper term for the burglary. And finally, defendant claims that the trial court erred in calculating credits for time served.
As will be explained more fully below, we will modify the judgment to award defendant 417 days credit for time served and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant suffers from paranoid schizophrenia. On December 25, 2006, defendant went to Richard Rowden’s home in Olivehurst with a loaded handgun. Donald Carlos, another resident of the home, answered the door. Without invitation, defendant entered the home and explained to Carlos: “I gotta kill the vampire. You know what I gotta do Don.” A struggle ensued during which defendant pointed the handgun at Carlos and said that he was there to “kill Richie” because Richie was a “vampire.” As the two men grappled with each other, defendant was able to see Rowden and his 15-year-old son in the dimly lit residence. Fortunately, Carlos pushed defendant out of the home before anyone was injured or killed and called the Yuba County Sheriff’s Department.
When deputies found defendant he immediately surrendered and explained: “The gun is in my pocket. It’s a loaded nine-millimeter, and it’s in the front right pocket of my pants.” As defendant was being escorted to the patrol vehicle, he told deputies: “You guys should have just let me walk on this one. I just wanted to kill him and then kill myself. He’s the bad guy here, not me.” On the way to the sheriff’s office, defendant spontaneously stated: “I should have just blown his fucking brains out. I should have just done it! I would have killed that motherfucker if he wasn’t a coward and put his fucking kid in the way, but I couldn’t do it, not in front of his kid.” At the sheriff’s office, defendant spontaneously stated: “Sometimes you just got to cut the cancer out. I don’t care who it is. It was his time to go, but I couldn’t get a shot off ‘cause he hid behind his fucking baby.”
Defendant was charged with first degree burglary (Pen. Code, § 459), assault with a firearm (§ 245, subd. (a)(2)), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). It was also alleged that defendant was armed with a handgun during the commission of the crime (§ 12022, subd. (a)(1)). Defendant pled not guilty.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant was convicted of felony arson in violation of section 452, subdivision (b) in 1979.
Following a mental competency evaluation performed by Dr. Don Stembridge, Ph.D., the trial court found defendant mentally incompetent to stand trial, suspended criminal proceedings, and committed defendant to Napa State Hospital. Criminal proceedings were reinstated nearly seven months later following the report of Napa State Hospital certifying that defendant had regained mental competency.
The findings of Dr. Stembridge’s mental competency evaluation are discussed in greater detail below.
Pursuant to a negotiated plea agreement, defendant pled guilty to first degree burglary and admitted to being armed with a firearm during commission of the crime. The assault and possession of firearm charges were dismissed. Defendant was sentenced to seven years in state prison. The trial court also imposed various fines and awarded defendant 337 days credit for time served.
Defendant filed a timely notice of appeal.
DISCUSSION
I.
Denial of Probation
Defendant contends the trial court abused its discretion by denying him probation. This contention has two components: first, that the trial court erred in deciding this was not an “unusual” case rendering defendant eligible for probation; and second, that the trial court did not take the next step and decide whether probation should be granted by utilizing the statutory criteria set forth in rule 4.414 of the California Rules of Court. We disagree.
All rule references are to the California Rules of Court unless otherwise indicated.
“A trial court has broad discretion in determining whether or not to grant probation. In reviewing that determination it is not our function to substitute our judgment for that of the trial court.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825 (Du).) Similarly, “‘[t]he standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion.’” (People v. Stuart (2007) 156 Cal.App.4th 165, 178 (Stuart); Du, supra, at p. 831.) Our function is limited to deciding whether the trial court’s denial of probation in this case was arbitrary, capricious, or exceeded the bounds of reason.
Here, prior to sentencing defendant, the trial court reviewed both the probation report and Dr. Stembridge’s mental competency evaluation.
Probation Report
The probation report acknowledges that “defendant has certainly been in need of mental health treatment for a prolonged period of time” and that defendant “would likely not have committed the current offense” had he been “participating in treatment.” Nonetheless, the probation officer recommended that defendant be denied probation for the following reasons: “[I]f he were to be placed on probation, there is little to indicate he would comply with any conditions imposed regarding mental health treatment. The defendant does not have a positive structure system to aid him once he is released from custody. He does not have a stable residence. He does not have family ties to the local area. . . . He does not believe he has a problem with alcohol; therefore, he may not believe he has to stop drinking. . . . Previous attempts to treat the defendant’s mental health conditions outside of a custodial setting were unsuccessful as the defendant was just not willing to participate in treatment as directed. The defendant has already expressed displeasure for the side effects his current medications are causing him. The probation officer has little doubt the defendant would cease taking his medication and participat[ing] in counseling programs once he is released from custody.” The probation officer concluded: “The risk posed to the community by the defendant is simply too great. . . . While the defendant obviously needs continued help, the public safety of others is paramount. It will be recommended the Court not make an unusual case finding and sentence the defendant to state prison.”
Mental Competency Evaluation
Dr. Stembridge’s mental competency evaluation confirms the probation officer’s concerns. According to Dr. Stembridge, defendant’s behavior is considerably influenced by delusions and hallucinations. Defendant was previously treated for his schizophrenia at Sutter-Yuba Mental Health Services and received a 30-day injection of Haldol, an antipsychotic drug “typically administered to psychotic patients who are noncompliant with medication.” Defendant never returned for further treatment. Defendant is homeless and “denied having a drinking problem” despite admitting to Dr. Stembridge that he “typically drank approximately 2 quarts of beer a day and 1½ pints of hard alcohol a week.” Dr. Stembridge further explained: “Based on the description of his aggressive behavior in the alleged offense, including statements about homicide and suicide, it is this psychologist’s opinion that as long as his psychotic condition is untreated, he presents a danger to himself and others.”
Sentencing Hearing
At the sentencing hearing, defendant’s attorney argued that probation should be granted: “This was an extremely unusual case. Mr. Nemanic acted out in a fashion that was obviously inherently dangerous, but there appears to be little doubt that at the time of the event he was under great psychological stress. He believed that the victim was something other than what the victim was, namely a vampire, and behaved in a reckless manner. [¶] Mr. Nemanic is now being properly medicated. He is extremely remorseful for his actions on the date in question.”
In response, the prosecutor acknowledged that defendant suffers from “mental health issues” which could “potentially” allow the court to make a finding of unusual case under rule 4.413. However, the prosecutor expressed concern that defendant “can go off his meds and be right back where we were.” Moreover, the prosecutor argued that even if the court were to make the unusual case finding, probation should be denied under rule 4.414: “[T]he 414 factors are much more troubling to me than the 413 because he was . . . armed with a loaded 9MM handgun. He has got a prior record of a 452. He doesn’t have a stable residence. I don’t believe because of that we can be certain that he will maintain his regimen with his prescription drugs.”
The trial court agreed with the prosecutor and denied probation. The court began by noting defendant’s record and alcohol problems: “I’m going to note that in 1979 the defendant started off with a felony 452(b), but then he has had constant contact with the criminal justice system since then, albeit smaller things, such as Fish and Game violations, possession of dangerous or deadly weapons. He was progressing. Wet reckless, habitual drunk in public, first degree assault in the State of Alaska, contempt of court, numerous violations of probation, picked up petty theft, and then a violation of a criminal protective order in 1998, and then more releases for drunk in public. He has had habitual problems with alcohol.” The court then expressed concern about the seriousness of the current offense and concluded: “I have no reason to think he wouldn’t repeat this conduct. I think the safety of the public mandates sending the defendant to prison, so probation will be denied. I cannot find this is an unusual case.”
A.
Unusual Case Determination
By burglarizing an inhabited dwelling house, defendant was presumptively ineligible for probation under section 462 of the Penal Code, which prohibits a grant of probation “to any person who is convicted of a burglary of an inhabited dwelling house” except in “unusual cases where the interests of justice would best be served if the person is granted probation.” (§ 462, subd. (a).) In determining whether the case is “unusual,” such that a grant of probation would be permissible, the trial court is required to use the criteria set forth in rule 4.413(c). (Du, supra, 5 Cal.App.4th at p. 830.)
Rule 4.413(c) provides: “The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) [A] fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) [A] fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.” (Rule 4.413(c).)
Defendant claims the trial court abused its discretion by failing to find this to be an unusual case under rule 4.413(c)(2)(B), which authorizes probation, “if otherwise appropriate,” where “[t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation.” (Rule 4.413(c)(2)(B).) We disagree.
While we are sensitive to defendant’s state of mind at the time of the crime, the trial court did not abuse its discretion by failing to find this to be an “unusual” case. “Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely ‘may indicate the existence of an unusual case.’ [Citation.] This language indicates the provision ‘is permissive, not mandatory.’ [Citing People v. Serrato (1988) 201 Cal.App.3d 761, 763.] ‘[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.’ [Citing People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1587.]” (Stuart, supra, 156 Cal.App.4th at p. 178.)
Here, defendant has not met his burden of demonstrating an abuse of discretion. First, the trial court was not required to specifically mention and negate the possibility of an unusual case finding under subdivision (c)(2)(B) in making its ruling. “The only finding required is that the case is or is not unusual.” (People v. Morado (1990) 221 Cal.App.3d 890, 894.) Second, defendant has not demonstrated that subdivision (c)(2)(B), purportedly qualifying him for probation, has been satisfied. While there is no dispute that the crime was committed because of defendant’s “mental condition,” the trial court was well within its discretion to find that the second clause of this subdivision was not satisfied. Given defendant’s history of noncompliance with medication and unremitting alcohol abuse, there simply was not a “high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation.” (Rule 4.413(c)(2)(B).)
Defendant’s reliance on People v. Marquez (1983) 143 Cal.App.3d 797 (Marquez), and People v. McClintock (1984) 159 Cal.App.3d Supp. 1 (McClintock), is misplaced.
In Marquez, the Court of Appeal reversed a denial of probation where apparently neither the trial court nor the parties were aware that rule 416 (predecessor to rule 4.413) was to guide the court’s exercise of discretion. (Marquez, supra, 143 Cal.App.3d at p. 803.) Because the trial court could have made an unusual case finding under subdivision (f) of that rule, and appeared to be unaware of its discretionary power to make such a finding, the court remanded for resentencing. (Marquez, supra, at p. 804.) Here, the trial court was clearly aware of rule 4.413. The prosecutor even reminded the court at the sentencing hearing that it could “potentially” make an unusual case finding under rule 4.413 because of defendant’s “mental health issues.” In an exercise of discretion, the court chose not to do so.
In McClintock, the trial court similarly misunderstood its discretionary power to make an unusual case finding. There, the trial court made the unusual case determination based solely upon the facts of the crime and failed to consider the defendant’s “background and individual characteristics, or whether the defendant was likely to commit a crime in the future or had any criminal background.” (McClintock, supra, 159 Cal.App.3d at Supp. 4 [defendant was an ordained minister, had no criminal record, and committed the crime because of an unusual situation that was unlikely to recur].) Here, the trial court specifically considered defendant’s criminal record and history of alcohol abuse and concluded there was no reason to believe defendant would not repeat this criminal conduct.
The trial court did not abuse its discretion in declining to make an “unusual case” finding.
B.
Failure to Analyze the Rule 4.414 Factors
In the absence of an “unusual case” finding, defendant is not eligible for probation. (§ 462.) Consequently, there was no need for the trial court to consider rule 4.414 and the facts relating to the crime and the facts relating to the defendant.
II.
Imposition of the Upper Term
Defendant asserts the trial court erred by imposing the upper term on the burglary. This claim also has two components: first, that imposition of the upper term violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham); and second, that remand for “resentencing is warranted even if the court committed no constitutional error” because “many erroneous factual findings formed the basis for the upper term the court imposed.” Again, we disagree.
A.
Sixth Amendment Challenge
The trial court’s imposition of the upper term did not violate defendant’s right to jury trial under the Sixth Amendment.
We note as a preliminary matter that defendant was sentenced after the Legislature amended section 1170 to give the trial court broad discretion to impose the lower, middle, or upper term by simply stating its reasons for imposing the selected term. As amended, the upper term, not the middle term, is the statutory maximum that may be imposed without additional factfinding. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.) The trial court could have avoided defendant’s Sixth Amendment challenge entirely by making clear that it was sentencing defendant under the amended scheme. However, in sentencing defendant to the upper term, the trial court apparently proceeded under the prior version of section 1170, as it weighed aggravating and mitigating circumstances in imposing the upper term. Consequently, we will analyze defendant’s Sixth Amendment challenge.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414].)
In Cunningham, the Supreme Court held that California’s determinate sentencing law (DSL) violates the Sixth and Fourteenth Amendments by “authoriz[ing] the judge, not the jury, to find the facts permitting an upper term sentence.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 871].) As the Court explained, “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 868].)
Interpreting the decision in Cunningham, the California Supreme Court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) As the court explained: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, at p. 813.)
Moreover, an aggravating circumstance accords with the constitutional requirements set forth in Blakely if it relates to the defendant’s criminal history. (Black II, supra, 41 Cal.4th at p. 818, citing Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [140 L.Ed.2d 350, 367-368].) This “prior conviction” exception encompasses “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, at pp. 818-820.)
In this case, the trial court imposed the upper term for the following reasons: “And weighing and considering the factors in aggravation, pursuant to Penal Code Section 1170(b), I’m going to note that as far as first degree burglaries go, this is the most serious you can get. Breaking into somebody’s house with the intent to kill, armed with a weapon, almost carrying that out. The factors in aggravation outweigh the factors in mitigation. Noting for the record the current offense involved the threat of great bodily harm. Pursuant to 4.421(a), the defendant threatened to kill one occupant. He entered a residence, he brandished a loaded 9MM at another occupant. [¶] He has prior convictions that are numerous and of increasing seriousness, and his . . . previous performance on probation was poor. And the fact that he has convictions for contempt of Court repeatedly, lead me to believe that he wouldn’t honor the Court’s orders for probation even if I had granted it.”
Defendant’s prior felony conviction for arson, his numerous, albeit less serious, criminal convictions since then, and his poor performance on probation were aggravating circumstances within the “prior conviction” exception. (People v. Towne (2008) 44 Cal.4th 63, 82 [defendant’s unsatisfactory performance on probation proved by evidence that defendant, while previously on probation, committed and was convicted of new offense]; Black II, supra, 41 Cal.4th at pp. 818-820 [prior conviction exception must not be read “too narrowly”]; see also People v. Thomas (2001) 91 Cal.App.4th 212, 223 [prior prison term falls within the exception]; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the exception covers “‘subsidiary findings’” that are “related to” a prior conviction, such as defendant’s status on probation].) Thus, even under former section 1170, subdivision (b), these aggravating circumstances exposed defendant to the upper term, making the upper term the relevant statutory maximum. (Black II, supra, at p. 819.) The Sixth Amendment “permit[ted] the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
We find no violation of defendant’s Sixth Amendment right to jury trial.
B.
Substantive Errors
Defendant further contends that remand for “resentencing is warranted even if the court committed no constitutional error” because “many erroneous factual findings formed the basis for the upper term the court imposed.” Defendant asserts six purported factual errors. We will briefly examine each and conclude that remand is unnecessary.
First, defendant bemoans the trial court’s description of the burglary as “the most serious you can get.” He claims that the burglary would have been more serious had he killed, raped, or mutilated the occupants of the home. Defendant’s argument is not well received. Defendant entered the home with the intention of killing one of the occupants. The fact that defendant did not behave in Manson-esque fashion upon entering the home does not negate the serious nature of this burglary. Defendant’s crime certainly involved the “threat of great bodily harm” within the meaning of rule 4.421(a)(1).
Second, defendant complains that he did not “almost” kill Rowden. Again, this complaint does not negate the aggravating circumstance relied upon by the trial court. While defendant was extricated from the home fairly quickly, he pointed a loaded gun at Carlos and explained that he was there to kill Rowden. Whether he “almost” killed Rowden or not, his actions involved the threat of great bodily harm.
Third, defendant complains about the trial court’s descriptive phrase “breaking into somebody’s house.” Defendant would prefer the phrase “uninvited entry.” However, as defendant admits, he committed burglary by entering the residence with the intent to commit a felony therein. (People v. Davis (1998) 18 Cal.4th 712, 720-722.) This is so regardless of whether he “broke” into the home or entered uninvited. Again, the fact that Carlos opened the door prior to defendant pulling a gun and explaining his intent to take Rowden’s life does not negate the aggravating circumstance that the crime involved the threat of great bodily harm.
Fourth, defendant argues that the trial court violated the rule against dual use of facts when it cited as a circumstance in aggravation the fact defendant was armed when he entered the home. We agree. Defendant was sentenced to an additional year in prison pursuant to section 12022, subdivision (a)(1) for being armed with a handgun during commission of the crime. The trial court did not specifically rely upon rule 4.421(a)(2). However, the court did twice mention that defendant was armed during its statement of reasons for imposing the upper term. This was error.
Fifth, defendant contends the court erred in describing his prior convictions as being “numerous and of increasing seriousness.” Defendant is correct that his prior convictions were generally of decreasing seriousness. However, the court was well within its discretion to find that defendant’s prior convictions were numerous. Under rule 4.421(b)(2), prior convictions need only be “numerous or of increasing seriousness” to constitute an aggravating circumstance. Consequently, the court did not err in imposing the upper term based upon this aggravating circumstance.
Finally, defendant complains he was not “repeatedly” convicted of contempt of court. Defendant is correct. He repeatedly violated probation and was convicted of contempt of court only once. This error, however, is immaterial because it is defendant’s repeated probation violations that constitute an aggravating circumstance under rule 4.421(b)(5).
As discussed above, the trial court improperly considered the fact that defendant was armed during commission of the crime as an aggravating circumstance. However, under rule 4.421, the court could properly have relied upon four aggravating circumstances: (1) the crime involved the threat of great bodily harm; (2) defendant engaged in violent conduct indicating a serious danger to society; (3) defendant has numerous prior convictions; and (4) defendant’s prior performance on probation was unsatisfactory. In mitigation, under rule 4.423, defendant was suffering from a mental condition that significantly reduced his culpability, and voluntarily acknowledged wrongdoing at an early stage of the criminal process.
Given the number of aggravating factors applicable to defendant in this case, we believe that there was an adequate basis for imposing the upper term. (People v. Searle (1989) 213 Cal.App.3d 1091, 1099-1100 [upper term properly imposed despite error as to three of eight asserted factors in aggravation; the five remaining aggravating factors adequately supported imposition of the upper term].)
III.
Calculation of Credits for Time Served
Defendant’s final contention is the trial court erred in awarding him 24 days credit for work and good conduct in the county jail under section 2933.1 rather than awarding him credit pursuant to section 4019. Defendant requested 55 days conduct credit under section 4019 based upon his presentence time served in the county jail. He concedes that he is not entitled to such credit for time spent at Napa State Hospital. While we agree that defendant is entitled to such credits, our independent calculation reveals that he is entitled to 80 days conduct credit under section 4019. (See People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14; People v. Fry (1993) 19 Cal.App.4th 1334, 1341; and People v. Smith (1989) 211 Cal.App.3d 523, 527.)
“A defendant convicted of a violent felony is limited as to the amount of presentence and postsentence custody credits that can be earned.” (People v. Singleton (2007) 155 Cal.App.4th 1332, 1336-1337; see also People v. Garcia (2004) 121 Cal.App.4th 271, 274.) Subdivision (a) of section 2933.1 provides that “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” (§ 2933.1, subd. (a).)
Subdivision (c) of Section 667.5 lists 23 violent felonies, including “[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).)
Defendant claims he should have been awarded credits under section 4019, as opposed to section 2933.1, because he was not convicted of a violent felony listed in subdivision (c) of section 667.5. While admitting he was convicted of first degree burglary, he claims “the complaint lodged against him did not contain the additional charge that a person, other than an accomplice, was present in the residence during the burglary.” Defendant is correct.
Count I of the complaint charged defendant with first degree burglary and alleged that defendant “did willfully and unlawfully enter an inhabited dwelling, or any room within located at 4603 ARDMORE AVE in the County of Yuba, with the intent to commit grand or petit larceny or any other felony.” Count II charged defendant with assault with a firearm and alleged defendant “did commit an assault upon the person of another with a firearm.” Count III alleged defendant “did willfully and unlawfully own or have in his/her possession or under his/her custody and control a certain firearm, when at the time of such possession, custody or control, the defendant was then a person who had been convicted of a felony, under the laws of the State of California.”
None of these counts charge “another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).) The charge that defendant burglarized an inhabited dwelling does not also charge that another person was present in the residence during the burglary. A dwelling is “inhabited” so long as it is currently used for residential purposes, regardless of whether it is currently occupied. (People v. Guthrie (1983) 144 Cal.App.3d 832, 838; People v. Villalobos (2006) 145 Cal.App.4th 310, 320.) And while the charge of assault with a firearm requires the presence of another person, the complaint does not specify that the victim of the assault was also an inhabitant of the burglarized dwelling.
Consequently, the trial court erred in calculating defendant’s credits under Penal Code section 2933.1. They should instead have been calculated under Penal Code section 4019.
DISPOSITION
The judgment is modified to award defendant credit for 337 days of actual custody and 80 days of presentence conduct credit for a total of 417 days. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: MORRISON, Acting P. J., ROBIE, J.