P. v. Koontz
Filed 7/3/13 P. v. Koontz CA2/6
Opinion following remand from Supreme Court
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opinion has not been certified for publication or ordered published for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
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
TREVOR LEE KOONTZ,
Defendant and Appellant.
2d
Crim. No. B224697
2d
Crim. No. B224701
(Super.
Ct. No. 2009029278 )
(Super.
Ct. No. 2009002554)
(Ventura
County)
ON
REMAND
This
case is before us on remand from the California Supreme Court to reconsider the
cause in light of People v. Brown (2012) 54 Cal.4th 314 and People v.
Lara (2012) 54 Cal.4th 896. (Cal.
Rules of Court, rule 8.528(d). Having
read and considered the supplemental
briefs, we vacate our prior decision and conclude that appellant is not
entitled to enhanced conduct credits under former Penal Code section 4019 which
was in effect on January 25, 2010.
§ 50.)
Facts
and Procedural History
In exchange for an
indicated three-year sentence, Trevor Lee Koontz pled guilty in case number
2009029278 to felony child endangerment
(Pen. Code, § 273a, subd. (a)), and admitted a prior serious felony
conviction (§§ 667, subds. (a)(1) & (e)(1); 1170.12, subds. (a)(1)
& (c)(1)) and admitted suffering two prior prison terms (§ 667.5,
subd. (b)). The trial court struck the
prior serious felony conviction and a prior prison term. On March 16, 2010, it sentenced appellant to
three years state prison. The court
awarded 219 days actual credit plus 108 days conduct credit (§ 4019,
subds. (b)(2) & (c)(2)) but ruled that appellant was not eligible to
receive one-for-one conduct credits (an additional 108 days conduct credit) due
to the prior serious felony strike conviction.
Appellant argued that
the order striking the prior conviction entitled him to "one-for-one
credits under PC 4019, as it's currently written." Denying the request, the trial court
stated: "I did take a look at the
Code section [§ 4019] again. If it
satisfies you, I will confess . . . that it continues to be subject to
interpretation . . . , but that's how I read the Code, sir."
Former Section 4019
Effective January 25,
2010, section 4019 was amended to provide that certain defendants may earn
presentence credit at the rate of two days for every two days in custody,
commonly referred to as "one-for-one credits." The Legislature said: "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, 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 (a) of subdivision
(b) or (c)." Thereafter on
September 28, 2010, the Legislature deleted "one-for-one credits."
(See People v. Brown, supra, 54
Cal.4th at p. 318, fn. 3 [discussing legislative history].)
In People v. Brown,
supra,
54 Cal.4th 314, our Supreme Court concluded that the January 25,
2010 version of section 4019 only applies to time in custody after its
operative date. (Id., at p. 322-323.) "To apply former section 4019
prospectively necessarily means that prisoners whose custody overlapped the
statute's operative date (Jan. 25, 2010) earn credit at two different
rates." (Id., at p. 322.)
That is the case
here. Appellant served 144 days actual
custody in 2009 and 75 days actual custody in 2010 before he was sentenced to
conduct credits for time in custody before January 25, 2010. (Id., at p. 318; see Couzens & Bigelow, Awarding Custody
Credits (Feb. 2013) pp. 8-9, available online at
http://www.courts.ca.gov/partners/documents/Credits_Memo.pdf.)
The January 25, 2010
version of section 4019 provides that defendants with a prior serious or
violent felony conviction are not eligible to receive enhanced one-for-one
conduct credits. (Former § 4019, subds. (b)(2) & (c)(2).) In People v. Lara,
54 Cal.4th 896, our Supreme Court held that a trial court does not
have authority under section 1385 to disregard historical facts that disqualify
a defendant from earning enhanced one-for-one conduct credits under former
section 4019. (Id., at p. 900.) Appellant has a disqualifying 1997 serious
felony conviction. The trial court struck
the prior serious felony conviction under section 1385 to avoid doubling
appellant's prison sentence (§ 1170.12, subd. (c)(1)) and correctly found that
appellant was not entitled to enhanced one-for-one conduct credits. (Id., at p. 906.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Bruce Young, Judge
Superior Court County of Ventura
______________________________
California Appellate
Project, under appointment by the Court of Appeal, Jonathan B. Steiner,
Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and
Appellant.
Edmund G. Brown Jr. and
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka and Lance C. Winters, Senior Assistant Attorneys
General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] Appellant admitted violating probation in a
second case (Case No. 2009002554) following a plea of guilty to felony child
endangerment (§ 273a, subd. (a)) and possession of a controlled substance
(Health & Saf. Code § 11377, subd. (a)). At a combined sentencing hearing, the trial
court revoked probation and sentenced appellant to two years on the child
endangerment count and a 16 month concurrent term on the controlled substance
count, and ordered the sentence to be served concurrent with the three year
sentence in case number 2009029278.
Appellant appealed from the denial of one-for-one conduct credits in the
second case (B224701) which was ordered consolidated with this appeal.
