Opinion
G038109
5-25-2007
Catherine Elizabeth White for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
Before OLeary, Acting P. J., Moore, J., and Ikola, J.
In 2007, Appellant, Joseph Thuan Van Nguyen, pleaded guilty to assault with a deadly weapon and also admitted the great bodily injury enhancement pursuant to subdivision (a) of Penal Code section 12022.7. For purposes of sentencing, the court struck the enhancement and sentenced Nguyen to the low term of two years. Despite having struck the enhancement, the court nevertheless limited Nguyens presentence custody credit to 15 percent pursuant to section 2933.1. As a result, the court awarded Nguyen with 529 days of actual custody plus 79 days of conduct credit calculated at 15 percent, for a total of 608 presentence credits.
All further statutory references are to the Penal Code.
In the only issue raised on appeal, Nguyen contends the court improperly calculated his presentence custody credit. According to Nguyen, if the court had correctly calculated his presentence credits pursuant to section 4019, he would have been entitled to 264 conduct credits for a total of 793 presentence credits, which exceeds the two year term for which he was sentenced. The Attorney General concedes the merit of the appeal and in the interest of justice suggests this Court order the immediate finality of this appeal and order the abstract of judgment amended to reflect the correct presentence calculation with immediate transmittal of the amended abstract to the Department of Corrections and Rehabilitation to permit Nguyens immediate release. We agree. In re Reeves (2005) 35 Cal.4th 765, holds that subdivision (a) of section 2933.1 has no application to a prisoner who is not actually serving a sentence for a violent offense, and thus entitled to receive 50% conduct credit "unaffected by [section 2933.1]."
(Id. at p. 780.)
Accordingly, the judgment on appeal is affirmed as modified. The superior court is commanded to forthwith amend the abstract of judgment to reflect appropriate credits consistent with this opinion, and immediately forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. Because Nguyens credit award exceeded the two year term for which Nguyen was sentenced on January 8, 2007, the Department of Corrections and Rehabilitation is ordered to release Nguyen in case number 05CF2433 immediately. In the interest of justice, the opinion in this matter is deemed final as to this court forthwith. Pursuant to the stipulation of the parties, the clerk is directed to issue the remittitur forthwith. The clerk is also directed to transmit a copy of this opinion and the remittitur to the Superior Court and the Department of Corrections and Rehabilitation forthwith. (Cal. Rules of Court, rules 8.264(b)(3), 8.272.)