Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA031209. Lance A. Ito, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
David M. Reeves appeals from the judgment entered following his negotiated plea of no contest to conspiracy to commit robbery in concert within an inhabited dwelling (Pen. Code, §§ 182, subd. (a)(1), 211, 213, subd. (a)(1)(A)) and three counts of false imprisonment by violence (§ 236), together with his admission of a prior felony conviction within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced in accordance with the plea agreement to 20 years in prison. He was awarded 4,203 days of precommitment credit, including 548 days of precommitment conduct credit.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends, and respondent concedes, that the trial court erred in limiting his award of precommitment conduct credit to 15 percent pursuant to section 2933.1. Respondent points out that the trial court should have imposed a mandatory $20 court security fee pursuant to section 1465.8, subdivision (a) on each of the four counts and asserts that the abstract of judgment should be corrected to reflect appellant’s admission of the strike prior.
We modify the judgment to reflect an additional 1,278 days of precommitment conduct credit and four $20 court security fees, and we direct the trial court to correct the abstract of judgment.
PROCEDURAL BACKGROUND
The record reflects, as to the counts to which appellant pled no contest, that in December 1996, he falsely imprisoned three individuals by force and conspired with two or more people to commit home invasion robberies of inhabited dwelling houses. He was arrested in January 1997.
Appellant was charged by information with 51 felony counts, most of them alleging personal use of a firearm, and the information alleged two prior strike convictions. Proceedings were continued numerous times between the filing of the information in April 1999 and appellant’s entry of his no contest plea in November 2006.
At the plea hearing, the information was amended to add as count 52 the charge of conspiracy to commit home invasion robbery of inhabited dwellings. The amended information alleged, as overt acts, that the victims of the robberies were followed to their residences, they were detained as they exited their vehicles, and they were robbed of personal property. Pursuant to a plea agreement, appellant pled no contest pursuant to People v. West (1970) 3 Cal.3d 595 to three counts of false imprisonment and the conspiracy count, and he admitted one strike conviction. Before appellant entered his plea, he expressed reluctance about admitting, with respect to the conspiracy count, that he entered a dwelling or committed robbery in a dwelling. The trial court explained that, as it would be a West plea, appellant need not admit he actually entered the residence.
Over appellant’s objection, the trial court imposed a 15 percent limitation on the number of days of precommitment conduct credit, indicating that “it’s a violent felony.” Appellant received 3,655 days of actual precommitment custody credit and 548 days of conduct credit, for a total of 4,203 days of credit.
While this appeal was pending, appellant brought a motion in the trial court to correct the award of precommitment conduct credit. The motion was denied.
DISCUSSION
Appellant contends that the trial court erroneously limited his precommitment conduct credit to 15 percent pursuant to section 2933.1 in the mistaken belief that the conspiracy conviction was a violent felony. Section 2933.1, which was in effect at the time of appellant’s offenses in 1996, limits precommitment conduct credit to 15 percent of the actual period of confinement for any person who is convicted of a felony listed in section 667.5. Section 667.5, subdivision (c), enumerates those offenses deemed violent felonies.
As respondent concedes, neither false imprisonment nor conspiracy to commit a crime is or has been on the list of violent felonies. In In re Mitchell (2000) 81 Cal.App.4th 653, 656-657 (Mitchell), the court concluded that conspiracy, and in particular, conspiracy to commit robbery in concert in an inhabited dwelling, was not a violent felony, and therefore the 15 percent limitation of section 2933.1 was inapplicable. Conspiracy is a distinct crime from the commission of an offense that is the object of the conspiracy. (Ibid., citing People v. Morante (1999) 20 Cal.4th 403, 416.)
In Mitchell, the court observed that conspiracy is an inchoate crime “and indeed, here, no act was committed within an inhabited dwelling or vessel, nor did Mitchell personally use a firearm,” referring to the two types of robbery that then qualified as violent felonies. (Mitchell, supra, 81 Cal.App.4th at pp. 656-657.) In the version of section 667.5, subdivision (c) in effect in 1996, robbery perpetrated in an inhabited dwelling house was an enumerated felony only where it was charged and proved that the defendant personally used a deadly or dangerous weapon in the commission of the robbery (former § 667.5, subd. (c)(9)); however, there was no proof or admission that appellant personally used a deadly weapon. (See Mitchell, supra, at pp. 656-657.) While section 667.5, subdivision (c)(9) was amended prior to appellant’s plea to provide that “[a]ny robbery” is a violent felony, even under this version of section 667.5, subdivision (c)(9), we would conclude, as does respondent, that this offense was not a violent felony, since appellant did not admit that he committed a robbery.
Pursuant to section 4019, appellant is entitled to 1,826 days of precommitment conduct credit. In addition, we modify the judgment to reflect four $20 court security fees, one on each count, pursuant to section 1465.8, subdivision (a). (People v. Alford (2007) 42 Cal.4th 749, 752; People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
DISPOSITION
The judgment is modified to reflect 1,826 days of precommitment conduct credit and a total of 5,481 days of credit, and to reflect four $20 court security fees. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that reflects these modifications and that indicates appellant admitted one prior conviction within the meaning of the three strikes law. In all other respects, the judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.