P. v. Brown
Filed 1/8/13 P.
v. Brown CA2/8
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
IBRAHIM
BIMABDULHAKI BROWN,
Defendant and Appellant.
B239819
(Los Angeles County
Super. Ct. No.
KA094247)
APPEAL
from a judgment of the Superior Court of
County. Bruce F.
Marrs, 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, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Ibrahim Brown pled no contest to one count of
of Penal Code section 496, subdivision (a).
On appeal, the parties agree the trial court incorrectly calculated an
award of presentence conduct credits.
However, they disagree on the number of days of conduct credit the trial
court should have awarded, based on conflicting interpretations of Penal Code
section 4019, subdivision (h).
entitled to 107 additional days of conduct credit, modify the judgment accordingly,
and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brown’s
appeal concerns only the trial court’s calculation of presentence custody
credits, thus we only briefly summarize the relevant background. On May 5, 2011,
Brown was arrested when police pulled him over in a traffic stop and discovered
stolen laptops in the car he was driving.
The computers had been stolen that morning from an elementary
school. The People charged Brown with
one count of receiving stolen property.
The People alleged a gang enhancement under section 186.22, subdivision
(b)(1)(A). The People also alleged Brown
had suffered three prior serious or violent felony convictions within the
meaning of the “Three Strikes†law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)). In March 2012, Brown pled no
contest to receiving stolen property, admitted the gang enhancement allegation,
and admitted he had suffered one prior strike, one prior conviction within the
meaning of section 667, subdivision (a)(1), and one prior conviction within the
meaning of section 667.5, subdivision (b).
The
trial court sentenced Brown to a state prison term of 12 years. The court awarded Brown 351 days of
presentence custody credits, consisting of 306 days of actual custody and 45
days of conduct credits.
I. Brown is Entitled to 107 Additional Days
of Conduct Credit
Brown
contends, and the People concede, that the trial court’s award of 45 days of
custody credits was incorrect. We agree
with the parties. It appears the trial
court calculated custody credits at 15 percent of actual custody time, pursuant
to section 2933.1. Under that section, a
defendant convicted of a violent felony within the meaning of section 667.5 may
accrue only 15 percent of actual custody time as conduct credits. However, Brown’s offense—receiving stolen
property—was not a violent felony under section 667.5. Thus, former section 2933 governed Brown’s
presentence custody credits. Under
former section 2933, subdivision (e)(3), Brown’s conduct credits were to be
calculated under section 4019.
As
mentioned above, Brown committed his crime and was arrested on May 5, 2011. He was sentenced on March 6, 2012. In October 2011, section
4019 was amended pursuant to the Criminal Justice Realignment Act of 2011. The prior version of section 4019,
subdivision (f) provided: “It is the intent of the Legislature that if all days
are earned under this section, a term of six days will be deemed to have been
served for every four days spent in actual custody.†The current, amended section 4019,
subdivision (f) provides: “It is the intent of the Legislature 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.â€
Although
Brown was sentenced after section 4019 was amended, section 4019, subdivision
(h) provides: “The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners who are
confined to a county jail, city jail, industrial farm, or road camp for a crime
committed on or after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.†Brown’s crime was committed before October 1, 2011. Thus, he is only entitled
to a credit of two days for every four days spent in actual presentence
custody.
Brown contends
we should interpret section 4019, subdivision (h) as requiring the court to
calculate his custody credits at two different rates based on the time he spent
in custody before October 1, 2011, and the time he
spent in custody between October 1, 2011 and March 2012,
when he was sentenced. We disagree. As explained in People v. Ellis (2012) 207 Cal.App.4th 1546, 1553 (
was to have the enhanced rate apply only to those defendants who
committed their crimes on or after October 1, 2011. (See People v. Lara [2012] 54 Cal.4th [896], 906, fn.
9.) The second sentence does not extend
the enhanced rate to any other group, but merely specifies the rate at which
all others are to earn conduct credits.
So read, the sentence is not meaningless, especially in light of the
fact the October 1, 2011, amendment to section 4019, although part of the
so-called realignment legislation, applies based on the date a defendant’s
crime is committed, whereas section 1170, subdivision (h), which sets out the
basic sentencing scheme under realignment, applies based on the date a
defendant is sentenced.†(
We adopt the
v. Rajanayagam (2012) 211 Cal.App.4th 42, 51-53.) Using the version of section 4019 in effect
at the time Brown committed his crime, he was entitled to a total of 152 days
of conduct credit. (Former § 4019, subd.
(f); In re Marquez (2003) 30 Cal.4th
14, 25-26.) Thus, the judgment must be
modified to reflect an additional 107 days of conduct credit, for a total
of 413 days of presentence credits.
The judgment is
modified to reflect an additional 107 days of presentence conduct credit. The trial court is directed to amend the
abstract of judgment to reflect the corrected presentence custody credits and
forward copies to the Department of
Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
FLIER,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
Brown’s offense was a serious felony as defined in section 1192.7, subdivision
(c)(28), due to the gang enhancement, and because he had a prior strike.
