Opinion
H036923
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA SILVA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS101740)
Defendant Joshua Silva appeals from an order revoking and reinstating probation. He contends that the court misapplied the statute allowing credit for time served prior to sentencing and that two probation conditions were unconstitutionally vague. Respondent concedes the errors. We will direct modifications and affirm the judgment as modified.
BACKGROUND
On October 19, 2010, defendant entered a plea of no contest to a charge of receiving stolen property. The factual basis for the plea, as stated by defense counsel and admitted by defendant, was that he possessed stolen property "[o]n or about July 19, 2010." On February 3, 2011, the court placed him on probation. Among the conditions of probation was that he "not . . . associate with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision."
On March 29, 2011, defendant admitted a probation violation as alleged in a petition stating that on March 8 he had tested positive for methamphetamine. The court reinstated probation on the original terms and conditions, but added a condition that defendant "serve 325 days in the county jail," with custody credits of 164 days, which were "calculated at 33 percent." Defense counsel lodged "an objection as far as credits being taken away." Although counsel's argument, or its transcription, is somewhat garbled, its gist appeared to be that defendant should have received "50 percent credit" for time served, not the 33 percent allowed by the court. The court responded, "All right. Thank you. Your objection is noted and note the violation occurred after the change in law and credits are as calculated."
Defendant filed this timely appeal.
DISCUSSION
I. Presentence Confinement Credits
Prior to January 25, 2010, a defendant held in county jail prior to sentencing would typically earn six days' credit (i.e., reduce his remaining time by six days) for each four days actually served—in effect, a ratio of three days earned for two days served. (Former Pen. Code, § 4019, subds. (b), (c), (f); Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, the statute was amended to grant four days' credit for every two days served—in effect, a two-to-one ratio. (Former Pen. Code, § 4019, subds. (b)(1), (c)(1), (f); Stats. 2009 3d Ext. Sess., ch. 28, § 50.) Effective September 28, 2010, the statute was again amended to restore the former three-for-two formula as to all prisoners. (Pen Code, 4019, subds. (b) & (c) as amended by stats. 2010, ch. 426, § 2.) By its terms, however, that amendment applies only to offenses committed after its adoption. (Id., subd. (g).)
The offense here was committed on July 29, 2010, squarely within the window entitling defendant to credits at the higher rate. The court below apparently believed that the governing date was that on which the parole violation was committed. The statutory language provides no basis for this supposition. On the contrary, the September 2010 amendments reinstating the lower credit rate were expressly declared applicable only to "a crime committed on or after the effective date" of the amending act. (Pen. Code, § 4019, subd. (g).) Respondent concedes the error, and the concession is well taken.
II. Conditions Predicated on Suspicion
Among the probation conditions imposed by the court were prohibitions against "associat[ing] with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision," and against "remain[ing] in any vehicle . . . which you know or suspect to be stolen or to contain any firearm or illegal weapon." Defendant contends that insofar as these prohibitions depend on his "suspect[ing]" that the triggering circumstances are present, they are unconstitutionally vague under this court's holding in People v. Gabriel (2010) 189 Cal.App.4th 1070. Respondent concedes the point and the concession is well taken. ~(RB 5)~
DISPOSITION
The superior court is directed to modify the order of March 29, 2011, to state that defendant is entitled to credits of 110 days actually served plus 110 days pursuant to Penal Code section 4019. The court will further modify the conditions of probation stated at pages 307 to 308 of the hearing of February 3, 2011, as incorporated in the order of March 29, by striking the phrase "or suspect." As so modified, the judgment is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.