Opinion
C084390
02-06-2018
THE PEOPLE, Plaintiff and Appellant, v. BILLY RAY VALADEZ, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 15SCR08530)
The People challenge the trial court's award of presentence custody credits to defendant Billy Ray Valadez following his conviction for false imprisonment. Defendant concedes the issue. We will accept defendant's concession and modify the judgment as to his presentence custody credits. As modified, we affirm the judgment.
PROCEDURAL BACKGROUND
We forego a recitation of the facts underlying defendant's conviction as they are not relevant to the issue on appeal.
On November 16, 2016, defendant entered a negotiated plea of guilty to false imprisonment, a serious or violent felony (Pen. Code, § 236) and admitted inflicting great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)) in exchange for a stipulated sentence of six years in state prison and dismissal of all remaining charges and allegations.
Undesignated statutory references are to the Penal Code.
On January 18, 2017, the trial court sentenced defendant to serve the midterm of two years for the false imprisonment conviction plus a consecutive term of four years for the infliction of great bodily injury enhancement for an aggregate term of six years in state prison. The court awarded defendant 1,292 days of presentence custody credit (646 actual days plus 646 conduct credits).
The People filed a timely notice of appeal.
DISCUSSION
The People contend, and defendant concedes, the trial court erroneously determined conduct credit was calculated day-for-day and awarded defendant presentence custody credits totaling 1,292. We agree.
"Under section 2933.1, if a person is convicted of a violent felony listed in section 667.5, subdivision (c) and is sentenced to state prison, the person's presentence conduct credits and postsentence worktime credits are both limited to 15 percent. [Citation.]" (In re Mallard (2017) 7 Cal.App.5th 1220, 1225-1226; § 2933.1, subd. (c).) Among the "violent felony" offenses listed in section 667.5 is "[a]ny felony in which the defendant inflicts great bodily injury on any person . . . which has been charged and proved as provided for in Section 12022.7 . . . on or after July 1, 1977." (§ 667.5, subd. (c)(8).)
Here, the trial court was under the misimpression that, because defendant was in local custody pending sentencing, he was entitled to day-for-day custody credit pursuant to section 4019. Despite the recommendation in the probation report and the probation officer's correct statement that defendant's conviction for a violent crime subjected him to only 15 percent credit, the trial court erroneously awarded defendant 1,292 days of presentence custody credit (646 actual days plus 646 conduct credits). We will modify the judgment to award 742 days of presentence custody credit (646 actual days plus 96 conduct credits).
Section 4019 provides for two days of conduct credit for every four days in actual custody (People v. Henson (1997) 57 Cal.App.4th 1380, 1384) and generally applies when section 2933.1 does not apply. --------
DISPOSITION
The judgment is modified to provide 742 days of presentence custody credit. The trial court is directed to amend the abstract of judgment to reflect 742 days of presentence custody credit and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
RENNER, J.