Opinion
B164269.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. GERALD CURTIS WADE, Defendant and Appellant.
J. Frank McCabe, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Margaret E. Maxwell, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Gerald Wade was convicted of committing a lewd act on a child. (Pen. Code, § 288, subd. (a); further section references are to the Pen. Code.) He was placed on probation, which was revoked and he was sentenced to state prison. Defendant later filed a combined petition for habeas corpus and ex parte motion. In it, he requested conduct credits for time served in local custody as a condition of probation under the section 4019 formula of two days credit for every four days actual time, rather than being limited to conduct credits of 15 percent of actual time under section 2933.1, subdivision (c). The trial court denied relief. We affirm that order of denial.
Although the denial of defendants motion for additional credits is appealable as an order after judgment affecting his substantial rights (& sect;§ 1237, subd. (b); 1466, subd. (2)(A)), denial of his petition for writ of habeas corpus is not an appealable order (§ 1506). (See People v. Gallardo (2000) 77 Cal.App.4th 971, 983.) Accordingly, the latter is not considered in this opinion.
BACKGROUND
On October 9, 1996, defendant entered a negotiated plea of guilty to committing a lewd act on a child. He did so with the understanding that he would receive an eight-year suspended sentence and be placed on probation for five years on condition that he "serve 180 actual days in county jail."
On November 27, 1996, pursuant to the plea agreement, the trial court suspended sentence and granted probation on condition that defendant serve 207 days in county jail. Simultaneously, defendant was given total credit of 207 days, consisting of 180 days actual custody and 27 days good time/work time.
Defendant was arrested on July 18, 1997, and his probation was revoked. At a hearing on November 3, 1997, defendant was found in violation of probation and was sentenced to eight years in state prison. At that time defendant was given total credit of 332 days, consisting of 316 days actual custody and 16 days good time/work time.
On December 13, 2002, defendant filed a combined petition for habeas corpus and ex parte motion seeking additional conduct credits. On January 7, 2003, the trial court "denied request for additional credits." On January 2, 2003, defendant filed a premature "notice of appeal from order denying writ of habeas corpus, and ex parte motion." We treat the notice of appeal as having been timely filed.
DISCUSSION
This case is controlled by People v. Daniels (2003) 106 Cal.App.4th 736. As explained in Daniels, although under sections 2900.5 and 4019 two days of conduct credits may be awarded for every four days of actual time spent in local custody, section 2933.1, subdivision (c) limits conduct credits to 15 percent of actual custody time if the defendant has been convicted of a violent felony listed in section 667.5 and sentenced to state prison. (People v. Daniels, supra, 106 Cal.App.4th at pp. 739-740.)
Lewd acts in violation of section 288 is listed as a violent felony in section 667.5, subdivision (c)(6).
Section 2933.1, subdivision (c), provides: "Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
Daniels discussed and distinguished In re Carr (1998) 65 Cal.App.4th 1525. In Carr, the defendant was granted probation on condition that he serve one year in county custody. (Id. at p. 1534.) Interpreting the language of section 2933.1, subdivision (c), the Carr court found the statute inapplicable to the violent offender in that case because it requires that a defendant be placed "in the custody of the Director of Corrections," and probationers are not placed in custody as such. (65 Cal.App.4th at pp. 1535-1536.) Accordingly, the defendant in Carr was entitled to conduct credit under section 4019 of two days for every four days of actual time spent in county jail. (Id. at p. 1536.)
In Daniels, a defendant who had been convicted of a violent felony was ordered to serve 365 days in county jail as a condition of probation and was released in accordance with a calculation of conduct credit based on section 4019. (People v. Daniels, supra, 106 Cal.App.4th at pp. 738-739.) He was later found in violation of probation and sentenced to state prison. Upon resentencing, the trial court recalculated, and reduced, the defendants conduct credits based on the 15 percent limitation of section 2933.1, subdivision (c). (People v. Daniels, supra, 106 Cal.App.4th at p. 739.) The Daniels court upheld the recalculation, concluding that a defendant is not entitled to retain section 4019 conduct credits on a jail term imposed as a condition of probation once he has violated probation and been sentenced to state prison. (People v. Daniels, supra, 106 Cal.App.4th at p. 741.)
Defendant contends that Daniels is distinguishable because the defendant there initially received credits under section 4019 and he did not, and that he ultimately did not even receive credit to the 15 percent limit. He further contends that Daniels was wrongly decided because its interpretation of statutory language was unwarranted and it "operates in the same manner as an ex post facto law." There is no merit to defendants arguments.
As to the first contention, defendant is correct to the extent that the trial court erred in limiting his conduct credits to 15 percent (27 days good time/work time for 180 days actual custody) when probation was originally granted. But that error became irrelevant when defendant was sentenced to state prison because, under Daniels, any credits granted under the section 4019 formula would have needed to be recalculated and reduced pursuant to section 2933.1, subdivision (c). (People v. Daniels, supra, 106 Cal.App.4th at pp. 739-741.) And while at first blush it appears that when the prison sentence was imposed defendant received less than the 15 percent to which he was entitled (16 days good time/work time for 316 days actual custody), a closer reading of the record reveals otherwise. Defendant was in custody for 109 days from the time of his arrest on a probation violation through the time of sentencing. Although the 316 days was stated as actual custody time, in fact it included all of the 207 days awarded upon the grant of probation, a component of which was the 27 days conduct credits. Thus, defendant properly received a total of 43 days of conduct credit, which represents 15 percent of his 289 days of actual custody.
As to defendants second contention, he has not provided any principled reason why the Daniels reading of section 2933.1, subdivision (c), which plainly limits local conduct credits to 15 percent "prior to placement in the custody of the Director of Corrections," is wrong. Nor does any aspect of this literal reading constitute, as asserted by defendant, an "unforeseeable judicial enlargement of a criminal statute" that violates the proscription against ex post facto laws. Accordingly, defendants contentions must be rejected.
DISPOSITION
The order under review is affirmed.
We concur: SPENCER, P. J. and ORTEGA, J.