Opinion
F060760 Super. Ct. No. BF128932A
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. CHARLES JOSEPH VANDERVOORDE, JR., Defendant and Appellant.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Meredith Strong, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Meredith Strong, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Charles Joseph Vandervoorde, Jr. was charged with various crimes after he stole a motorcycle. He pled no contest in return for the trial court's dismissal of a prior conviction and imposition of an indicated sentence of probation plus jail time. On appeal, he contends the trial court either abused its discretion by not awarding one-for-one conduct credits pursuant to Penal Code section 4019, or misunderstood its discretion to do so. We will affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTS AND PROCEDURAL SUMMARY
On July 22, 2009, a parole agent witnessed defendant driving a motorcycle recklessly through a residential neighborhood, then push the motorcycle into a house. Defendant was wearing a helmet, but not a shirt, so the agent was able to observe defendant's distinctive tattoos. The agent and a California Highway Patrol officer knocked on the front door and were admitted by another person. The motorcycle was in the living room. They found defendant in bed under the covers. He had not been given permission to use the motorcycle.
On September 4, 2009, the Kern County District Attorney charged defendant with unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1); reckless driving (Veh. Code, § 23103, subd. (a); count 2, a misdemeanor); and driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count 2, a misdemeanor). The information further alleged that defendant had suffered a prior conviction for making criminal threats (§ 422) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)).
On January 8, 2010, defendant pled no contest to all charges and admitted the allegations that he had suffered a prior conviction for making criminal threats and had served a prior prison term. In return for the plea, the court indicated a probation sentence with one year of jail time, and with dismissal of the prior conviction if defendant filed a Romero motion pursuant to section 1385.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On February 1, 2010, defendant filed the Romero motion, and on February 9, 2010, the sentencing hearing took place. At the beginning of the hearing, defense counsel requested of the court that, if it intended to impose the indicated sentence, it grant defendant "day-for-day credits rather than two-thirds time credit for the time in the county jail ...." The prosecutor responded that she did not believe defendant was entitled to day-to-day credits. The probation officer then stated: "Your Honor, the defendant isn't entitled to those day-to-day credits based upon the [section] 422 [prior] conviction MF 0071738."
After discussing the Romero motion, the court granted it, stating, "Based on the totality of the circumstances in this particular case, the particulars of [defendant's] background, character, and prospects, I will find that based on the facts of this case, he is sufficiently outside of the sentencing scheme for the court to strike the [section] 667[, subdivision] (e) allegation." The court then sentenced defendant and listed his probation conditions. Finally, the court stated: "[Defendant] is entitled to 203 actual, 100 good and work for 303 days. [¶] He's not entitled to half[-]time credit based on the prior conviction of a serious felony under [section] 4019[, subdivisions] (b)(2) and (c)(2)."
On June 10, 2010, defendant admitted violating probation. The court revoked probation and sentenced defendant to two years in prison with credit for 325 days in custody.
DISCUSSION
Defendant contends he qualified for day-for-day ("half[-]time") conduct credits pursuant to the January 2010 version of section 4019 because the trial court dismissed his prior conviction. He requests that we either conclude he is entitled to the credits or remand the matter because the trial court misunderstood the scope of its discretion to dismiss the prior conviction for this purpose.
Assuming, without deciding, that the January 2010 version of section 4019 applied to defendant, we conclude there is no evidence the court misunderstood the scope of its discretion, or abused its discretion by refusing to dismiss the prior conviction for purposes of calculating credits pursuant to section 4019.
The section 4019 amendment became effective on January 25, 2010, after defendant committed the crimes and changed his plea, but before he was sentenced. Issues of retroactivity are before the Supreme Court in cases such as People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
Section 4019 was further amended effective September 28, 2010. This amendment does not affect this case or our analysis.
The January 2010 version of section 4019 provides for a higher rate of conduct credits by which "a term of four days will be deemed to have been served for every two days spent in actual custody ...." (Id., subd. (f).) However, it provides for a lower rate of conduct credits when a defendant "has a prior conviction for a serious felony, as defined in Section 1192.7 ...." (Id., subds. (b)(2) & (c)(2).) In that situation, the defendant is entitled to a rate by which "a term of six days will be deemed to have been served for every four days spent in actual custody ...." (Id., subd. (f).)
In this case, defendant's prior conviction for making criminal threats under section 422 is defined as a serious felony by section 1192.7, subdivision (c). But defendant argues that the trial court dismissed this prior conviction not just for sentencing purposes, but also for purposes of section 4019. Defendant initially relies on People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135 (Jones), which is no longer authoritative. The Jones rationale rested in part on whether the trial court understood its sentencing discretion to dismiss a prior serious felony allegation for the purposes of calculating credits under the higher rate of section 4019.
We need not reach the question of whether we agree with the reasoning of Jones because we conclude there is no evidence the trial court in this case did not understand the scope of its sentencing discretion. Section 1385 expressly allows the trial court to either "strike or dismiss an enhancement," or "instead strike the additional punishment for that enhancement ...." (§ 1385, subd. (c)(1); see In re Pacheco (2007) 155 Cal.App.4th 1439, 1443 [trial court struck the sentence for the admitted great bodily injury enhancement, but did not strike the enhancement in its entirety; court therefore properly limited credits under § 2933.1 because crime qualified as violent felony due to infliction of great bodily injury].) "'The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]'" (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.)
Furthermore, the record here gives us no reason to believe the trial court misunderstood that it had the discretion to act in the two ways provided by section 1385. At the hearing, defense counsel argued before the court that defendant was entitled to the higher rate of credits, and the prosecutor and probation officer countered that defendant was not entitled due to his prior conviction. The trial court dismissed the prior conviction for purposes of sentencing because defendant was "outside of the sentencing scheme," but concluded he was not entitled to the higher rate of credits because of that prior conviction. We will not conclude the trial court misunderstood the scope of its sentencing discretion "in the absence of some affirmative showing that it [did]." (People v. Alvarez (1996) 49 Cal.App.4th 679, 695.) "'We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error—it will not be presumed. [Citation.]'" (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Thus, there is a "normal presumption of regularity concerning the exercise of sentencing discretion." (People v. Mosley (1997) 53 Cal.App.4th 489, 497.)
Moreover, we see nothing in the record to suggest the trial court abused its discretion when it decided not to dismiss the prior conviction for purposes of applying section 4019.
DISPOSITION
The judgment is affirmed.
Kane, J.
WE CONCUR:
Gomes, Acting P.J.
Franson, J.