Opinion
F061347
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS GONZALEZ RAMIREZ, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. VCF230603 & VCF188479)
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Appellant, Luis Gonzalez Ramirez, appeals from a judgment entered after he pled guilty in case No. VCF230603 to driving with a blood alcohol content of .08 percent or greater with prior convictions (count 2/Veh. Code, §§ 23152, subd. (b), 23550, & 23550.5) and admitted violating his probation in case No. VCF188479. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we will modify Ramirez's award of presentence custody credit and affirm.
FACTUAL AND PROCEDURAL HISTORY
On November 25, 2009, a California Highway Patrol officer saw a car driven by appellant, Luis Gonzalez Ramirez, traveling on the wrong side of the road. The officer attempted to initiate a traffic stop but Ramirez did not pull over. Ramirez eventually parked his car in a driveway and exited holding an open can of beer in his hand. When the officer advised him that he was driving while drinking a beer, Ramirez replied, "'It's okay. I'm home.'" The officer arrested Ramirez after Ramirez failed some field sobriety tests. A blood test disclosed that Ramirez had a blood alcohol content of .24 percent (case No. VCF230603). At the time of his arrest, Ramirez's license was suspended and he was on probation for a prior conviction for driving under the influence with priors (case No. VCF188479).
On February 22, 2010, the district attorney filed an information in case No. VCF230603 charging Ramirez with driving under the influence of alcohol with prior convictions (count 1/Veh. Code §§ 23152, subd. (a), 23550, & 23550.5), driving with a blood alcohol content of .08 percent or greater with prior convictions (count 2/Veh. Code, §§ 23152, subd. (b), 23550, & 23550.5, and driving while his driving privilege was suspended (count 3/Veh. Code, § 14601.2, subd.(a)).
On July 1, 2010, Ramirez pled no contest to count 2 in case No. VCF230603 and admitted violating his probation in case No. VCF188479 in exchange for the dismissal of counts 1 and 3 and a stipulated term of three years in both cases.
On August 26, 2010, the court sentenced Ramirez to the stipulated three-year term on his conviction in VCF230603 and a concurrent three-year term in case No. VCF188479. In both cases, the court awarded Ramirez 504 days of presentence custody credit.
Ramirez's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (Wende, supra, 25 Cal.3d 436.) However, in a letter filed on April 1, 2011, Ramirez contends that because the judge imposed concurrent terms and gave him 504 days of presentence custody credit in each case, he should have been released from prison custody on October 15, 2010. We disagree. Additionally, we will conclude that the court committed two errors in calculating Ramirez's presentence custody credit.
Ramirez was arrested in case No. VCF230603 on November 25, 2009, and released the next day. On December 21, 2009, he was remanded into custody and remained there through the date of his sentencing in both cases on August 26, 2010. For these two time periods, the court awarded Ramirez 504 days of presentence custody credit in each case: 252 days of presentence actual custody credit and 252 days of presentence conduct credit. This, however, included an erroneous award of three days of presentence actual custody credit and three days of conduct credit for the two days Ramirez was in custody from November 25, 2009, through November 26, 2009. Accordingly, in each case, we will reduce Ramirez's award of presentence custody credit by one actual custody day and the corresponding conduct credit. Further, using the two-for-two formula of Penal Code section 4019 in effect when Ramirez was sentenced, for the above periods of time Ramirez is entitled in each case to 251 days of presentence actual custody credit and 250 days of corresponding conduct credit (251 actual custody days/2 = 125.5 days; 125 days x 2 = 250 conduct days) for a total of 501 days of presentence custody credit (251 actual custody days + 250 conduct days = 501 days of presentence custody credit).
All further statutory references are to the Penal Code.
Section 4019 permits a defendant to earn additional custody credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)) or by good behavior during confinement (§ 4019, subd. (c)). Such credits are collectively referred to as "conduct credits." (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Section 4019's scheme for presentencing credits "'"focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed...."' [Citations.]" (Dieck, at p. 939.)
Senate Bill No. 18, enacted in October 2009, amended section 4019 (eff. Jan. 25, 2010) to enhance the rate at which certain offenders could accrue conduct credits. (Stats. 20092010, 3d Ex. Sess., ch. 28, § 50, p. 4427.) The amendments allowed defendants to earn conduct credits at an accelerated rate of four days' credit for every two days actually served. (Former § 4019, subd. (f).) However, the amendments specified sex offender registrants and defendants with a prior, serious felony conviction were ineligible to earn credits at the accelerated rate. (Former § 4019, subds. (b)(2), (c)(2).) Such defendants continued to earn credits at the preJanuary 25, 2010, rate of "six days ... for every four days spent in actual custody." (Compare, former § 4019, subd. (f) [Stats. 1982, ch. 1234, § 7]; former § 4019, subd. (f) [Stats. 20092010, 3rd Ex. Sess., ch. 28 (S.B. 18), § 50, eff. Jan. 25, 2010].)
Effective September 28, 2010, the Legislature again amended section 4019, returning to the earning rate in effect prior to January 25, 2010, and deleting the sections excluding sex registrants and defendants with a prior, serious felony conviction from enhanced creditearning eligibility. The September 28, 2010 amendments apply only "to prisoners who are confined to a county jail ... for a crime committed on or after the effective date of that act." (§ 4019, subd. (g).)
Additionally, in case No. VCF188479, appellant was in custody 220 days from his arrest in that matter on August 7, 2007, through March 13, 2008. Although the probation report recommended that the court award Ramirez 440 days of presentence custody credit (220 days of presentence actual custody credit and 220 days of presentence conduct credit) for this time period, the court neglected to do so. Thus, in case No. VCF188479, Ramirez is entitled to an additional 440 days of presentence custody credit for a total of 471 days of presentence actual custody credit (251 days + 220 days = 471 days) and 470 days of presentence conduct credit (250 days + 220 days = 470 days) for a total of 941 days of presentence custody credit (471 days + 470 days = 941 days).
Moreover, Ramirez's three-year sentence required him to serve a total of 1095 days (1 year = 365 days; 3 x 365 days = 1095 days). Thus, even if the court had awarded Ramirez 941 days of presentence custody credit in case No. VCF188479, at his sentencing hearing on August 26, 2010, he would still have had 154 days (1095 days -941 days = 154 days), or approximately five months (1 month = 30 days; 154 days/30 = 5.13 months) left to serve in that case. Further, on August 26, 2010, Ramirez had approximately 594 days (1095 days - 501 days = 594 days) or approximately 20 months (594 days/30 days = 19.8 months) left to serve in case No. VCF230603. Additionally, since the court imposed concurrent sentences, Ramirez would not have been released from prison custody until he served the three-year term imposed in that case. Accordingly, we reject Ramirez's contention that he should have been released from prison custody on October 15, 2010, because he could not have served his sentence in either case during the approximate 1.5 months between August 26, 2010, and that date, even if he received one-for-one worktime credit (§ 2933) while in prison.
Following an independent review of the record, we find that with the exception of the credit issues discussed above, no reasonably arguable factual or legal issues exist.
DISPOSITION
Ramirez's award of presentence custody credit in case No. VCF230603 is reduced from 504 days to 501 days, as calculated above, and increased in case No. VCF188479 from 504 days to 941 days, as calculated above. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.