Opinion
B228169
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE RUBEN VALVERDE, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. LA064991, LA062593)
APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Modified and affirmed with directions.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Jesse Ruben Valverde appeals from the judgment entered following a jury trial in which he was convicted of auto theft and the prison sentence imposed upon revocation of his probation for a prior first degree burglary conviction. Defendant contends the trial court erroneously applied Penal Code section 2933.1 (undesignated statutory references are to the Penal Code) to limit his presentence conduct credits and exercised its sentencing discretion on the basis of an erroneous belief that his burglary conviction constituted a "violent felony" within the scope of section 667.5, subdivision (c). We agree that defendant's burglary did not fall within the scope of section 667.5, subdivision (c), and section 2933.1 is inapplicable to him. We modify the judgment to award defendant the presentence conduct credits to which he is entitled, but otherwise affirm.
BACKGROUND
In Los Angeles Superior Court case No. LA062593, defendant was charged with a July 22, 2009 first degree burglary. The original and amended felony complaints included allegations that the offense was "a violation of" section 462, subdivision (a); a serious felony within the scope of section 1192.7, subdivision (c); and was a violent felony within the scope of section 667.5, subdivision (c), "in that another person, other than an accomplice, was present in the residence during the commission of" the burglary. On August 31, 2009, defendant pleaded no contest to first degree burglary and admitted "the enhancement allegation, [] section 462(a)" pursuant to a plea agreement. Defendant did not admit the allegation that another person was present or that the offense constituted a violent felony within the scope of section 667.5, subdivision (c). The court suspended imposition of sentence and placed defendant on probation on conditions including serving one year in jail. It awarded defendant 50 percent local conduct pursuant to section 4019.
In Los Angeles Superior Court case No. LA064991, defendant was charged with grand theft auto, and his burglary conviction in case No. LA062593 formed the basis of an allegation under the "Three Strikes" law.
The evidence presented during a jury trial of the auto theft charge showed that about 6:50 p.m. on April 30, 2010, undercover Los Angeles Police Department officers left a GMC Yukon "bait car" unlocked and running, with the keys in the ignition, in a residential area near the intersection of Webb Avenue and Pendleton Street in Los Angeles. They also left a Ludacris CD in the car. The Yukon was equipped with a tracking device and hidden video and audio recorders that also transmitted to a monitor in a nearby undercover police vehicle. Soon after the officers left the Yukon as bait, other undercover officers saw defendant and Angel Perez twice approach it together, look at it, and walk past it. On the third pass, Perez walked up to the Yukon alone, then walked away. Defendant then walked up, got in the Yukon alone, and drove it away. A portion of the video recorded by the camera hidden in the Yukon was shown to the jury at defendant's trial.
Officers followed the Yukon, but lost sight of it. They found it through its tracking device about 15 minutes later. It was parked approximately three blocks from where police had left it as bait. As other officers detained Perez outside his home on Webb near Pendleton, defendant walked back into the neighborhood on Pendleton. Defendant was arrested and the police recovered a Ludacris CD from his pocket. Defendant repeatedly and spontaneously stated that he was sorry. Defendant was advised of his Miranda rights and waived them. An officer asked him where the keys to the Yukon were, and defendant said he threw them over a wall, then pointed toward a wall. Defendant again said he was just moving the car, but could not explain why he kept the keys. The police recovered the keys at the site defendant indicated.
The jury convicted defendant of grand theft auto, and defendant admitted the strike allegation based on his 2009 burglary conviction in case No. LA062593. On the basis of the new auto theft conviction, the trial court revoked defendant's probation in case No. LA062593. The trial court sentenced defendant to the four-year middle term for burglary, with a consecutive second strike term of 16 months for auto theft.
At sentencing, defense counsel told the court that defendant was required to serve 85 percent of his sentence on both the burglary and the auto theft. The court awarded defendant 493 days of local credit, calculated as follows: 365 days already served in jail on the burglary conviction, plus 112 days of additional actual custody, plus 16 days (15 percent of 112 days) for presentence conduct credits.
DISCUSSION
1. Applicability of section 2933.1
Section 4019 permits a person detained in a jail or other local detention facility to earn additional credit against his or her ultimate sentence by performing assigned labor and complying with the facility's rules and regulations. (§ 4019, subds. (b), (c).) Such credits are collectively referred to as presentence conduct credits (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3) and are earned at the rate of two days for every four days actually served. (§ 4019, subds. (b), (c), (f).)
Section 2933.1 limits conduct credits earned either in prison or in a local facility to a maximum of 15 percent of the actual custody credits for any defendant convicted of a felony offense listed in section 667.5, subdivision (c), which sets for a list of "violent" felonies. The trial court applied the limitation set forth in section 2933.1 to defendant's conduct credits, as defense counsel advised. Had the trial court awarded presentence conduct credits under section 4019, defendant would have received 56 days of presentence conduct credit based on his 112 days of actual custody. Defendant contends that the trial court erred by applying section 2933.1 to limit his presentence conduct credits to 16 days. We agree because neither burglary nor auto theft constituted a violent felony under section 667.5, subdivision (c).
First degree burglary constitutes a "serious" felony under 1192.7, subdivision (c)(18). It can also be a violent felony under section 667.5, subdivision (c)(21), but only if "it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." Although the felony complaint in case No. LA062593 alleged that the burglary was a violent felony and that "another person, other than an accomplice, was present in the residence during the commission of" the burglary, these allegations were neither admitted nor proven.
The Attorney General argues that defendant admitted the strike allegation in the auto theft case. But a strike can be either a serious felony or a violent felony. (§ 667, subdivision (d)(1).) Defendant's strike was a serious felony, but not a violent felony. Defendant's admission of the strike did not mean that his burglary was a violent offense to which section 2933.1 applied. The Attorney General also argues that the court advised defendant that if he admitted the strike allegation, he would receive "less custody credits. Instead of getting 50 percent off of your sentence, you . . . would only get 20 percent off." The 20 percent limitation on prison credits addressed by the court is part of the Three Strikes law (§ 667, subd. (c)(5)), and is distinct from the 15 percent limit imposed by section 2933.1. Defendant's acknowledgement of the Three Strikes limitation on prison credits did not mean that section 2933.1 also applied to him.
Defendant's "admission" of the section 462 allegation in his burglary case also failed to make the burglary a violent felony. Section 462 is not an enhancement, but is instead a limitation on probation for persons convicted of first degree burglary: "(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach as defined in Section 635 of the Vehicle Code, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or the inhabited portion of any other building. [¶] (b) If the court grants probation under subdivision (a), it shall specify the reason or reasons for that order on the court record." Defendant's "admission" thus did not establish the facts necessary to place his burglary within the scope of section 667.5, subdivision (c)(21).
Accordingly, the trial court erred by applying section 2933.1 to defendant. Although the court was apparently induced to do so by defense counsel, a conclusion that counsel's blunder precluded this court from correcting the trial court's error would require a future expenditure of judicial resources to address counsel's ineffective assistance. An incorrect award of credits results in an unauthorized sentence that may be corrected whenever it comes to our attention (People v. Guillen (1994) 25 Cal.App.4th 756, 764), and we do so now, without regard to defense counsel's error. Defendant is entitled to 56 days of presentence conduct credits under section 4019, an increase of 40 days. (Defendant's serious felony conviction made him ineligible for the higher local conduct credit rate provided in the 2009 amendment to section 4019.) We modify the judgment to reflect this increase.
2. Sentencing based upon erroneous belief
Defendant further contends that resentencing is required because the trial court was laboring under an erroneous belief that his burglary was a violent offense when it exercised its sentencing discretion. He cites the court's initial choice of the low term for burglary, which it then changed to the middle term, and its application of section 2933.1 to limit his local conduct credits.
If the trial court misunderstood its sentencing discretion, defendant is entitled to resentencing. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) But we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)
A review of the transcript of sentencing disproves defendant's theory that the court exercised its discretion on the basis of an erroneous belief. The court initially stated the following, with respect to burglary: "On the first degree residential burglary, defendant will be sentenced to the state prison for the low term period of two years. The court is imposing the low term because at the time of the conviction of this offense he had no serious or violence [sic] in his background. And defendant will be given, consecutive to that, for person present, 462 sub (a), an additional three years for a total time on the violation—" Defense counsel interrupted, "No. Excuse me, your honor. May we approach?" An unreported bench conference ensued. The court then stated, "All right. Then I'm going to strike that low term of two years and the comments that I made referencing it. Defendant will be sentenced to the state prison for the mid term . . . of four years."
The court thus indicated its intention to sentence defendant to five years on his burglary case, including three years for a nonexistent enhancement under section 462, which the court seemed to believe included the element of a person other than an accomplice being present during the burglary—the same factual element that would make the burglary a violent offense under section 667.5, subdivision (c)(21). It is probable that during the unreported bench conference, counsel explained to the court that section 462 was not an enhancement for a person being present, and the court then chose the middle term of four years for burglary instead of the low term because it could not add a three-year enhancement. The court's remark explaining its initial choice of the low term also referred to serious or violent felony convictions prior to the burglary. An erroneous belief by the court that it was also a violent felony offense is irrelevant in this context because the court was assessing defendant's record prior to the burglary. Even if the court was referring to defendant's record after the burglary, it expressly included both violent and serious offenses, and defendant's burglary was a serious offense. Thus, the sequence of events and the court's statements do not support the defendant's theory that the court's exercise of its sentencing discretion was in any way affected by an erroneous belief that the burglary was a violent offense.
DISPOSITION
We modify defendant's presentence conduct credits to be 56 days, for a total of 533 days of presentence credit, and direct the trial court to issue an amended abstract of judgment. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
CHANEY, J.
Miranda v. Arizona (1966) 384 U.S. 436, 444 1602.