P. v. Lee

P. v. Lee






Filed 1/6/12 P. v. Lee CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. YOUN BUM LEE, Defendant and Appellant.

G044958 (Super. Ct. No. 07CF1356) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Craig E. Robison, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In December 2009, defendant Youn Bum Lee was sentenced to prison after he pled guilty to gross vehicular manslaughter while intoxicated. A month later, the Legislature amended Penal Code[1] section 4019, the statute that governs the amount of conduct credits to be awarded defendants incarcerated before sentencing. The amendment generally resulted in additional presentence conduct credits for defendants. Lee contends he is entitled to additional credits against his sentence because section 4019 must be applied retroactively. The issue of retroactive application of that amendment to section 4019 is presently pending before the California Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963)^[2] This case does not require us to determine whether section 4019 applies retroactively because even were we to assume retroactive application, defendant would not be entitled to the additional credits as he stands convicted of a serious felony.
I
FACTS
On November 10, 2009, defendant pled guilty to one count of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and admitted an enhancement for fleeing the scene (Veh. Code, § 20001, subd. (c)). On December 7, 2009, the court sentenced defendant to the agreed upon term of nine years in state prison. He was granted 372 days credit for actual time served and 186 days credit under section 4019, resulting in a total presentence credit of 558 days.


On February 3, 2011, defendant filed a motion “to correct” his presentence credits based on the amendments to section 4019 effective January 25, 2010. The superior court denied defendant’s motion on February 8, 2011, and defendant filed a timely notice of appeal.
II
DISCUSSION
A defendant sentenced to state prison following a criminal conviction is entitled to credit against the sentence imposed for all days spent in custody prior to sentencing, including days served as a condition of probation. (§ 2900.5, subd. (a).) In addition, the defendant may be entitled to conduct credits pursuant to section 4019.
At the time defendant was sentenced in 2009, section 4019 contained two subdivisions that awarded conduct credits for defendants confined prior to trial. For each six-day period, subdivision (b) deducted one day for what is commonly referred to as worktime credit. Subdivision (c) deducted another day over the same period for what is commonly referred as goodtime credit. The credits are collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, & fn. 3.) Taken together, these provisions deemed six days served for every four days actually spent in custody. (Id. at p. 939.)
Effective January 25, 2010, section 4019 was amended to provide for increased conduct credits in most cases. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427-4428.) The worktime credit provision was amended and redesignated subdivision (b)(1). (Id. at p. 4428.) The goodtime credit provision was amended and redesignated subdivision (b)(2). (Ibid.) With the amendments to section 4019, the Legislature intended “that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c).” (Former § 4019, subd. (f) [amended by Stats. 2009-2010, 3d Ex. Sess., c. 28, § 50, p. 4428], italics added.) Thus, if subdivision (b)(2) or (c)(2) of section 4019 applies, a defendant would not be entitled to the additional credits. As will be demonstrated below, defendant is a person described in each of those paragraphs and was not entitled to increased presentence credits even were we to apply section 4019 retroactively.
Subdivision (b)(2) of section 4019, as enacted on January 25, 2010, provided in pertinent part: “If the prisoner . . . was committed for a serious felony, as defined in Section 1192.7, or has a conviction for a serious felony, as defined in Section 1192.7, or a violent felony as defined in Section 667.5, . . . for each six-day period in which the prisoner is confined in or committed to a facility specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, . . . .” (Italics added.) Subdivision (c)(2) of section 4019, as enacted on January 25, 2010, contained a similar exclusion for individuals “committed for a serious felony.”
Defendant was sentenced to prison for gross vehicular manslaughter while intoxicated (§ 191.5), a serious felony. (People v. Wood (2000) 83 Cal.App.4th 862, 866; § 1192.8 [“[f]or purposes of subdivision (c) of Section 1192.7, ‘serious felony’ also means any violation of Section 191.5”].) The additional credits authorized by the January 25, 2010 version of section 4019 did not apply to a defendant sentenced on a serious felony conviction. Having been convicted of a serious felony in this matter, defendant received the credits to which he was entitled under the version of section 4019 in effect at the time of his sentencing, as well as the version that went into effect on January 25, 2010.




III
DISPOSITION
The judgment is affirmed.



MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.