P. v. Mendez

P. v. Mendez

























Filed 8/5/10 P. v. Mendez CA2/3













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN JUAN MENDEZ, Defendant and Appellant.

B215684 (Los Angeles County Super. Ct. No. PA061991)

APPEAL from a judgment of the Superior
Court of Los Angeles
County, Harvey Giss, Judge. Modified with directions.

William D. Farber, under appointment
by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.



>_









Esteban Juan
Mendez appeals the judgment entered following his conviction based on his no
contest plea to willful failure to
register as a sex offender. (Pen.
Code, § 290, subd. (b).)

Mendez
challenges the number of days of presentence custody credits the trial court awarded
him. He also challenges the assessments
the trial court imposed pursuant to Government Code section 70373 and
Government Code section 76104.7.

We conclude each
of Mendez’s contentions is meritorious and order the abstract of judgment
corrected accordingly.

>FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 2008, Mendez reported to register as a sex offender and
was arrested for previous failures to register.
Mendez was released from custody on May 20, 2008, and on December 3, 2008, pursuant to a negotiated disposition, entered a no
contest plea to one count of violating Penal Code section 290, subdivision (b).

On March 19, 2009, the trial court
sentenced Mendez to two years in state prison and awarded Mendez seven days of
actual custody credit and two days of local conduct credit for a total of nine
days of presentence custody credits. The
trial court also imposed, inter alia, “a $20 penalty assessment, a $20 DNA
assessment, and a $30 conviction fee . . . .”
The minute order and the abstract of judgment reflect these additional
sanctions as a $20 court security assessment pursuant to Penal Code section
1465.8, subdivision (a)(1), a $20 DNA penalty assessment pursuant to Government
Code section 76104.7, and a $30 criminal conviction assessment pursuant to
Government Code section 70373.

CONTENTIONS

Mendez contends he is
entitled to additional presentence custody credits; the $30 criminal
conviction assessment must be stricken because the amended version of
Government Code section 70373 went into effect after the date of his
conviction; and, the $20 DNA penalty assessment pursuant to Government Code
section 76104.7 must be stricken because it is unauthorized.

>DISCUSSION

1. The trial court erroneously
calculated Mendez’s presentence custody credits.

a. Mendez is entitled to one
additional day of actual custody credit.

Mendez contends he is
entitled to one additional day of actual custody credit. Mendez’s contention is well taken.

Under Penal Code
section 2900.5, a person sentenced to state
prison for criminal conduct is entitled to credit against the term of
imprisonment for all days spent in custody before sentencing. (Pen. Code, § 2900.5, subd. (a).) The sentencing court must grant a defendant
actual time credits both for the day of arrest and the day of sentencing. (People
v. Browning (1991) 233 Cal.App.3d 1410, 1412; People v. Smith (1989) 211 Cal.App.3d. 523, 525-527.) Here, Mendez was arrested on May 13, 2008 and was released from local custody on May 20, 2008. Based
thereon, Mendez was entitled to eight days of actual custody credit. However, the court only awarded him seven
days.

We shall order
the abstract of judgment corrected to reflect eight days of actual
custody.

b. Mendez is entitled to four
additional days of conduct credit.

Mendez contends
he is entitled to four additional days of conduct credit. Numerous cases have addressed the proper
method of calculating presentence custody credits under former Penal Code
section 4019.[1] These cases uniformly have concluded the
trial court is required “to divide by four the number of actual presentence
days in custody, discounting any remainder.
That whole-number quotient is then multiplied by two to arrive at the
number of good/work credits. Those
credits are then added to the number of actual presentence days spent in
custody, to arrive at the total number of presentence custody credits.” (People
v. Culp (2002) 100 Cal.App.4th 1278, 1283, citing People v. Smith, supra, 211 Cal.App.3d at p. 527; >People v. Bravo (1990)
219 Cal.App.3d 729, 731.) Here,
Mendez served eight days of actual custody.
Based thereon, he is entitled to four days of conduct credit [(8 divided
by 4) times 2 = 4].

Therefore,
Mendez should have received 12 days of presentence custody credits (8 days
of actual custody credit plus 4 days of conduct credit). We shall order the abstract of judgment
corrected accordingly.

2. The
trial court improperly imposed a $30 criminal conviction assessment pursuant to
Government Code section 70373.

Mendez was
charged with failure to register as a sex offender in May of 2008. He was convicted by no contest plea on December 3, 2008 and was sentenced on March 19,
2009. The amended version of Government Code
section 70373, subdivision (b), became effective on January
1, 2009. Based on this chronology, Mendez
contends the $30 criminal conviction assessment imposed under Government Code
section 70373 must be stricken because it was enacted after the date of his
conviction.

Mendez’s
claim is persuasive.

“A
new statute is generally presumed to operate prospectively absent an express
declaration of retroactivity or a clear and compelling implication that the
Legislature intended otherwise.
[Citation.]” ( >People v. Hayes (1989) 49 Cal.3d 1260,
1274.) However, “a statute may apply
retroactively if there is ‘ “a clear and compelling implication” ’ that the
Legislature intended such a result. [Citation.]” (People
v. Alford (2007) 42 Cal.4th 749, 753-754.)
There is no “clear and compelling implication” of retroactive
application of Government Code section 70373.
The statute only applies to cases in which the conviction occurs on or
after its effective date. ( >People v. >Davis (2010) 185 Cal.App.4th 998,
1000-1001.)

Because Mendez was convicted before the effective date of January 1, 2009, the $30 criminal conviction assessment must be
stricken. We shall order the abstract of
judgment corrected accordingly.

3. >The DNA penalty assessment pursuant to
Government Code section 76104.7 must be stricken.

Mendez contends
the $20 DNA penalty assessment pursuant to Government Code section 76104.7 was
unauthorized. The People concede this
point and it appears their concession is well taken.

The DNA
state-only penalty assessment under Government Code section 76104.7,
subdivision (a), can only be imposed in
addition to an assessment under Government Code section 76104.6. Government Code section 76104.7, subdivision
(a), states: “Except as otherwise
provided in this section, in addition to the penalty levied pursuant to Section
76104.6, there shall be levied an additional state-only penalty of three
dollars ($3) for every ten dollars ($10), . . . in each county upon every fine,
penalty, or forfeiture imposed and collected by the courts for all criminal
offenses . . . .”

Thus, Government Code
section 76104.7 provides for assessments to be levied upon other fines,
penalties, or forfeitures. Here, the
trial court did not impose a DNA penalty assessment pursuant to Government Code
section 76104.6, subdivision (a)(1).
Therefore, an assessment under 76104.7 cannot be imposed. Moreover, there was no fine, penalty, or
forfeiture imposed which could have supported a DNA penalty assessment under
either Government Code section 76104.6 or 76104.7. >[2] Therefore, the $20 DNA penalty assessment
imposed under Government Code section 76104.7 must be stricken. We shall order the abstract of judgment
corrected accordingly.

DISPOSITION

The judgment is ordered modified to reflect 12 days of
presentence custody credits (8 days of actual custody plus 4 days of conduct
credit). The judgment is also ordered
modified to strike the $30 criminal conviction assessment under Government Code
section 70373 and the $20 DNA penalty assessment under Government Code section
76104.7. The clerk of the superior court
is directed to prepare and forward an amended abstract of judgment reflecting these
modifications to the Department of
Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







CROSKEY, J.









KITCHING, J





Publication courtesy of San
Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information
provided by www.fearnotlaw.com