P. v. Jones








Filed 9/19/11 P. v. Jones CA1/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. ARMSBERRY JONES, Defendant and Appellant.

A129299 (Alameda County Super. Ct. No. C163345)

Armsberry Jones entered a plea of no contest to receiving stolen property in exchange for probation and the dismissal of other charges. He violated his probation and was sentenced to three years in prison, with 109 days of presentence custody credit and 54 days of conduct credit. The court also ordered Jones to pay $8,500 in victim restitution.
This appeal challenges the restitution order and the court’s calculation of conduct credit. While Jones’s restitution claim is meritless, his argument as to conduct credit is well taken. We therefore affirm the judgment and order the trial court to amend the abstract of judgment to correctly reflect the credit to which Jones is entitled.
BACKGROUND
The Genesis Project, a nonprofit organization that operates affordable housing and clean and sober living programs, owned an Oakland property comprised of two vacant apartment buildings. Each of the 20 apartments in the main building had intact, useable fixtures, including antique cast-iron bathtubs dating from the building’s 1925 construction. Between 1998 and 2010 the Genesis Project prepared engineering studies for a planned renovation, and worked with the City of Oakland to develop a plan to remediate contamination from a former dry cleaner tenant.
Patrick Stoute is the Genesis Project’s executive director. On March 9, 2010, he saw Jones and a second man on the property, loading something into a van parked in the driveway. The driveway gate was open and a hole had been cut in a boarded-up rear door to the building. Stoute was calling the police when Jones saw him and began to approach. Stoute closed the gate in an attempt to keep the van from leaving before the police arrived. Jones pushed him away, opened the gate, and drove off. Police arrived almost immediately and apprehended Jones a block from the property.
One of the claw-footed iron bathtubs from the larger apartment building was found in the van. Stoute estimated the bathtub’s value as over $600. Pieces of two broken bathtubs were also found on the ground directly beneath windows from which boards had been removed. A third bathtub was found in a third-floor apartment window.
Photographs showed damage to the walls and marble floors due to removal of the tubs from the apartment building bathrooms.[1] A contractor estimated the cost of repairs at $7,900. Apparently Project Genesis was unable to recover the stolen bathtub after the van, with the tub in it, was towed to the police lot.
DISCUSSION
I. The Restitution Award
Jones contends the court improperly included the cost of repairing damaged bathroom walls and floors when it awarded restitution under Penal Code section 1202.4[2] because “there was no reasonable likelihood that the building from which the tub was taken would ever be repaired.” We disagree. The court rationally rejected Jones’s prediction based on the evidence before it. Accordingly, the amount of the award was an appropriate exercise of its discretion.
“ ‘At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] “Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.” ’ ” (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) “While the court need not order restitution in the precise amount of the loss, it ‘must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.’ ” (Ibid.) We review a restitution order for abuse of discretion, and will affirm if there is a factual and rational basis for the amount of restitution ordered. (Id. at p. 1173; People v. Phu (2009) 179 Cal.App.4th 280, 284.)
Jones argues the court could not rationally include repair costs in the restitution award because the Genesis Project faced various impediments, including the need for seismic retrofitting and remediation of environmental contamination, which he asserts will prevent it from repairing and developing the property. He also points to evidence that the Genesis Project has not yet obtained permits for its renovation and that it owes the City of Oakland $18,000. But none of this compels the conclusion that the renovations, and, hence, the repairs, will not go forward. Stoute testified that the Genesis Project purchased the property for approximately one million dollars and owned it outright. The project had already spent half a million dollars on development costs, submitted a compliance plan to the city, and applied for the necessary permits. Loans for the renovation were in place. Stoute explained that the plans specified the $18,000 debt to the city was to be paid from escrow out of loan funds. The Genesis Project remained intent on developing the property despite some community opposition and delays in obtaining regulatory approvals. Based on this factual record, the court reasonably declined to credit Jones’s claim that the repairs would never be done and, hence, that the award of repair costs was improper.
II. Presentence Conduct Credit
Jones correctly contends the court miscalculated his presentence credit because it applied the less generous version of section 4019 in effect prior to January 25, 2010.[3] Under the amended version of the statute, which increased the presentence credit available to defendants who have no current or prior convictions for serious or violent felonies and are not required to register as sex offenders, Jones was entitled to earn two days of credit for every four days that he actually served. (§ 4019, subds. (b) & (c); see generally People v. Dieck (2009) 46 Cal.4th 934, 939.) Moreover, he was also eligible to, and apparently did, qualify for two days of credit for every two days actually served: “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. . . .” (§ 4019, subd. (f).) Pursuant to the version of section 4019 effective January 25, 2010, the correct amount of conduct credit is calculated by dividing the number of actual days in custody by two, rounding down to the nearest whole number, and then multiplying by two. (See People v. Fry (1993) 19 Cal.App.4th 1334, 1341 [formula under prior version].) As Jones had 109 actual days of presentence custody, he was thus entitled to 108 days of presentence conduct credit.
The People do not dispute that applying the February 25, 2010 version of section 4019 results in an award of 108 days of credit. Nor do they dispute that the court calculated Jones’s credit using the pre-amendment formula, resulting in an award of 54 days.[4] That was error. Jones committed the crime and was arrested on March 9, 2010, after the effective date of the amended statute. He was sentenced on July 28, 2010. Because the amended version of section 4019 was in effect at all relevant times, it was error (as the trial court subsequently recognized) to calculate Jones’s presentence conduct credit under the earlier version of the statute. The People argue the January 25, 2010 amended version should not be applied retroactively, but here, because the amendment predates Jones’s crime and sentence, the question of retroactivity is irrelevant.[5]
“A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Therefore, we shall correct the award of presentence conduct credit to a total of 108 days. (See ibid.)
DISPOSITION
The judgment is affirmed. Jones is awarded a total of 108 days of presentence conduct credit. The trial court is directed to prepare a corrected abstract of judgment showing the corrected award of custody credit and to forward a certified copy to the Department of Corrections and Rehabilitation.

_________________________
Siggins, J.

We concur:

_________________________
McGuiness, P.J.

_________________________
Jenkins, J.

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