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People v. Yanez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 9, 2012
B229549 (Cal. Ct. App. Jan. 9, 2012)

Opinion

B229549

01-09-2012

THE PEOPLE, Plaintiff and Respondent, v. RICHARD YANEZ, Defendant and Appellant.

Renee Paradis, 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, Kenneth C. Byrne and David C. Cook, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA109280)

APPEAL from a judgment of the Superior Court of Los Angeles County. Lori Ann Fournier, Judge. Affirmed as modified.

Renee Paradis, 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, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Richard Yanez pled no contest to one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) and one count of possession of a smoking device in violation of Health and Safety Code section 11364, subdivision (a). He admitted that he had suffered a prior felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law) and had served prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). As part of a plea agreement, the trial court sentenced appellant to a term of four years in state prison. The court suspended execution of the sentence and placed appellant on formal probation for a term of three years.

All further statutory references are to the Penal Code unless otherwise indicated.

About 16 months after sentencing, appellant was found in violation of probation. The trial court revoked appellant's probation and imposed the four year prison sentence. Appellant was awarded 466 days of presentence custody credit, consisting of 208 days of actual custody, 208 days of conduct credit and 50 days credit for time spent in a rehabilitation program. Various fines were imposed.

Appellant appeals from the judgment of conviction, contending that the assessment of attorney fees in the minute order and abstract of judgment should be stricken and that he is entitled to 36 days of additional custody credit. We order the minute order and abstract of judgment corrected as set forth in the disposition. We affirm the judgment of conviction in all other respects.

Facts

The facts of the underlying offense are not relevant to any issue on appeal and so are omitted.

Discussion

1. Attorney fees

Appellant contends that the October 13, 2010 minute order and abstract of judgment incorrectly show that the trial court ordered appellant to pay $268 in attorney fees. Respondent agrees. We agree as well.

There is nothing in the record to show that a hearing was held on attorney fees. The Reporter's Transcript does not show any oral pronouncement by the court that appellant pay attorney fees.

When there is a discrepancy between the trial court's oral pronouncement of judgment and the minutes or the abstract of judgment, the oral pronouncement controls. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, the minute order and abstract of judgment in this case must be corrected to strike the attorney fees.

2. Presentence custody credit

The trial court calculated appellant's actual days in custody based on an arrest date of June 8, 2010. Appellant contends that this was erroneous, as he was in fact arrested on May 21, 2010. Respondent agrees. We agree that appellant is entitled to the additional 18 days of actual custody credit, for a total of 226 days of actual custody credit.

In a footnote in his supplemental letter brief on appeal, appellant contends that there is a possible error in the 2010 arrest date for the bench warrant issued in connection with the probation violation, and thus a possible additional error in the custody credit calculations amounting to between 1 and 4 days of additional actual custody. He bases this contention on an ambiguous statement in the probation report. Appellant's trial counsel represented that appellant was entitled to 41 days of actual custody credit, which would mean that appellant was arrested on September 3, 2010 on the bench warrant issued in connection with his probation violation. If appellant believes that he has sufficient evidence to show an arrest date other than September 3, 2010, he may bring a motion to correct his credits in the trial court after this case becomes final.

Appellant further contends that he is entitled to 18 days of conduct credit for those 18 days of actual custody. The trial court had previously awarded appellant conduct credit at this rate, that is, two days of conduct credit for every two days of actual custody provided in section 4019 as amended by Senate Bill No. 18.

At our request, the parties briefed the issues of whether the trial court erred in awarding appellant two for two credit in light of his prior strike conviction.

Some trial courts have struck some defendants' prior convictions for sentencing purposes, and awarded those defendants two for two credit. Prosecutors and the Attorney General have objected to this practice. The issue of whether a trial court has authority to strike a prior strike conviction for presentence custody credit is now before the California Supreme Court. (People v. Lara, S192784, review granted May 18, 2011 .)

As part of his plea agreement, appellant admitted that he had suffered a prior strike conviction, and the trial court struck the conviction. This occurred on June 2, 2009, well before the amended version of section 4019 was enacted. When appellant's probation was revoked in October 2010, section 4019 had been amended by Senate Bill No. 18. Under that version of section 4019, certain defendants received two days of conduct credit for every two days of actual custody credit. (Stats. 2009 (3d Ex. Sess.) ch. 28, § 50.) Here, without discussion, the trial court awarded appellant two days of conduct credit for every two days of actual custody. The prosecutor did not object to the award.

That amendment was passed in October 2009, with an effective date of January 25, 2010. (Stats. 2009 (3d Ex. Sess.) ch. 28, § 50.)

In fact, the Senate Bill No. 18 amendments were revoked by another amendment to section 4019 enacted on September 28, 2010. By its express terms, however, this revocation did not apply to defendants like appellant who committed their crimes prior to September 28, 2010. (§ 4019, subd. (g).) Further changes were made to custody credit awards by Assembly Bill No. 109, enacted on April 4, 2011 with an operative date of October 1, 2011. By its express terms, however, these amendments do not apply to defendants like appellant who committed their crimes prior to October 1, 2011. (§ 4019, subd. (h).)
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We hold that the trial court erred in awarding two for two credit. The court lacked the power to strike the prior conviction allegation for purposes of section 4019.

The California Supreme Court has explained that section 1385 may be used to dismiss sentencing allegations, but not sentencing factors. (In re Varnell (2003) 30 Cal.4th 1132, 1137.) "[W]hile a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use." (Id. at p. 1138.) Thus, "a trial court's power to dismiss an 'action' under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation." (Id. at p. 1139.)

Section 4019 does not contain any express requirement that a prior conviction be pled or proved. "There is authority for finding an implied pleading and proof requirement in criminal statutes." (In re Varnell, supra, 30 Cal.4th at p. 1140.) We see no basis for implying such a requirement in the case of section 4019, however.

Established case law from this Court of Appeal holds that there is no right to a jury determination of facts relating to presentence custody credits under section 2933.1, which limits such credits for a defendant who suffers a current conviction for, inter alia, a violent felony. (People v. Garcia (2004) 121 Cal.App.4th 271, 277; In re Pacheco (2007) 155 Cal.App.4th 1439, 1445.) The Courts in Garcia and Pacheco both held that a limitation on presentence conduct credits does not operate to increase the maximum punishment for a crime. "Rather, the provisions for presentence conduct credits function as a sentence 'reduction' mechanism . . . ." (People v. Garcia, supra, 121 Cal.App.4th at p. 277.) "Lessening the 'discount' for good conduct credit does not increase the penalty beyond the prescribed maximum punishment." (Ibid.) "A reduction in the worktime credits allowed by section 2933.1 may feel like 'additional punishment' to a prisoner . . . . [but] such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs." (In re Pacheco, supra, 155 Cal.App.4th at p. 1445.) Thus, the trial court determines whether a defendant's conviction limits his presentence custody credits.

We see no meaningful difference between section 2933.1 and amended section 4019. Accordingly, we hold that reduced custody credit under amended section 4019 is not increased punishment. A jury trial on the prior conviction is not required before the trial court can limit custody credits under amended section 4019.

Since there is no pleading and proof requirement for section 4019, the trial court did not have the power under section 1385 to dismiss appellant's prior conviction for purposes of section 4019. "In the absence of a charge or allegation, there is nothing to order dismissed under section 1385." (In re Varnell, supra, 30 Cal.4th at p. 1139.)

The credits which appellant is entitled to receive under amended section 4019 are the same as those he would receive under the previous version of section 4019, two days of conduct credit for every four days of actual custody. Thus, there is no need to reach the issue of retroactivity in this case.

The formula for conduct credit is the number of actual days in custody, divided by four, rounded down to the nearest whole number and multiplied by two. (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14; People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Appellant had 226 days of actual custody. This number divided by 4 is 56.5 which must be rounded down to 56. Fifty-six times two is 112.

Disposition

The references to an award of attorney fees in the October 13, 2010 minute order and abstract of judgment are ordered stricken. Appellant's presentence custody credit is ordered corrected to a total of 338 days, as follows: (1) appellant is awarded 18 more days of actual custody, for a total of 226 days and (2) he is entitled to a total of 112 days of conduct credit. The clerk of the superior court is instructed to prepare an amended minute order and abstract of judgment that reflects these corrections, and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.


Summaries of

People v. Yanez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 9, 2012
B229549 (Cal. Ct. App. Jan. 9, 2012)
Case details for

People v. Yanez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD YANEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 9, 2012

Citations

B229549 (Cal. Ct. App. Jan. 9, 2012)