P. v. Nunez
Filed 2/5/13 P. v. Nunez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
EDGAR NUNEZ,
Defendant
and Appellant.
E055034
(Super.Ct.Nos. INF10000212 &
INF1101571)
OPINION
APPEAL from the Superior
Court of
County. Anthony R.
Villalobos, Judge. Affirmed with
directions.
Ron Boyer, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel, and Meredith S. White, Deputy Attorneys
General, for Plaintiff and Respondent.
I.
INTRODUCTION
A
Case No. INF10000212 (Case 1)
On
February 3, 2010, an information charged defendant and appellant Edgar Nunez
with one count of possessing a controlled
substance for sale, methamphetamine, under Health and Safety Code section
11378 (count 1); and possessing paraphernalia used for unlawfully injecting and
smoking a controlled substance under Health and Safety Code section 11364
(count 2). With regard to count 1, the
information further alleged that defendant possessed for sale a substance
containing 28.5 grams or more of methamphetamine and 57 grams or more of a substance
containing methamphetamine, within the meaning of Penal Code section 1203.073,
subdivision (b)(2).
On
June 4, 2010,
defendant pled guilty to all counts.
The
same day, defendant was sentenced to state
prison for a total term of two years.
The court selected count 1 as the principal count and imposed the middle
term of two years. On count 2, the court
imposed 180 days to run concurrent to count 1.
The court suspended execution of the sentence and placed defendant on
supervised probation for three years with 365 days in local custody. Defendant was awarded credit for time served
for 16 actual days plus 16 days under Penal Code section 4019, for a total of
32 days credit.
B.
No. INF1101571 (Case 2)
On
August 10, 2011, an amended information charged defendant with one count of
possessing a controlled substance for sale, methamphetamine, under Health and
Safety Code section 11378 (count 1).
With regard to this count, the information alleged that defendant was
previously convicted of a felony violation of section 11378 of the Health and
Safety Code, within the meaning of Health and Safety Code section 11370.2,
subdivision (c). The information also
alleged that defendant had one or more prior convictions for violating the
Health and Safety Code, within the meaning of Penal Code section 1203.07,
subdivision (a)(11).
On
October 24, 2011, defendant pled guilty as charged and admitted the prior conviction
enhancements.
C.
Sentencing in Both Cases
1.
1
On
October 24, 2011, because of defendant’s guilty plea in Case 2, the court found
defendant to be in violation of probation in Case 1 and executed the sentence
of two years to be served in Riverside County jail and run concurrent with the
sentence in Case 2. For the probation
violation, defendant was awarded credit for time served of 292 actual days plus
163 days under Penal Code section 4019, for a total of 455 days credit. Counsel objected to this calculation; it was
overruled.
2.
2
The
court sentenced defendant to custody for a total term of five years, to be
served at Riverside County jail under Penal Code section 1170, subdivision (h),
and to run concurrent to the sentence in Case 1. The court imposed the middle term of two
years on count 1, and three years to run consecutive for the enhancement. The court executed the two-year term for
count 1, but suspended execution of the three-year term granting supervised
release under Penal Code section 1170, subdivision (h)(5). Therefore, defendant must serve two years in
county jail on both cases, then complete his sentence on Case 2 with three
years of supervised release.
In
Case 2, defendant was awarded credit for time served of 109 actual days, plus
54 days under Penal Code section 4019, for a total of 163 days credit. Counsel objected to this calculation; it was
overruled.
On
November 16, 2011, defendant filed a notice
of appeal in both cases. On appeal,
defendant claims that the trial court erred in calculating his Penal Code
section 4019 conduct credits. For the
reasons set forth below, we modify defendant’s conduct credits. Moreover, the People claim that the trial
court miscalculated defendant’s actual custody credit in Case 1. We affirm the trial court’s award of custody
credit in Case 1.
II.
STATEMENT OF
FACTS
On
January 5, 2010, defendant was searched by officers who found a glass pipe
normally used to smoke methamphetamine, which contained burnt residue, and 5.1
ounces of methamphetamine.
On
April 28, 2011, officers found 10.5 grams of methamphetamine, packaging, and a
scale during a search of defendant’s residence.
III.
ANALYSIS
Defendant
contends that the trial court erred in calculating his Penal Code section 4019
erred in calculating the actual custody credit in Case 1.
A.
Background
In
Case 1, defendant was arrested on January 5, 2010. Defendant was released on his own
recognizance on January 21, 2010; he spent 16 actual days in custody. Defendant did not serve any additional
custody in this case prior to sentencing.
On June 4, 2010, the court imposed a two-year sentence but stayed its
execution on the condition that defendant be placed on formal probation and
serve 365 days in county jail. Defendant
was awarded 16 actual credits and 16 conduct credits, for a total of 32
credits. Thereafter, defendant was
remanded to the custody of the sheriff’s department to serve the 365 days in
jail. Defendant’s custody credits were
applied to his 365 days or ordered custody.
Hence, defendant was to serve 333 days.
At
the final sentencing hearing on October 24, 2011, defendant was given 292
actual credits and 163 conduct credits in Case 1.
In
Case 2, defendant was arrested again on April 28, 2011. This was a violation of the probation terms
of Case 1. It appears from the record
that defendant was released after serving seven days of custody.
July 15, 2011, after defendant was arraigned, he was remanded to the custody of
the sheriff. He remained there until he
was sentenced in both cases on October 24, 2011. Defendant was in custody for 102 actual days. In Case 2, defendant received 109 actual days
in custody and 54 conduct credits.
B.
Amendments to Section 4019
In
October of 2009, the Legislature passed Senate Bill No. 18 (SB 18). Among other things, SB 18 revised the accrual
rate for conduct credits under section 4019, effective January 25, 2010. Under the old version of section 4019,
defendants earned two days of conduct credit for every four actual days served
in local custody. Under SB 18, certain
defendants were eligible to earn two days of conduct credit for every two days
of actual custody.
In
September of 2010, the Legislature amended section 4019 again in Senate Bill
No. 76 (SB 76). SB 76 restored the old
version of section 4019. Under SB 76,
defendants serving presentence custody time were eligible for conduct credits
at a rate of two days for every four days of actual custody time. (§ 4019, subd. (f).) SB 76 also added subdivision (g), which made
the new decreased credits applicable only to defendants who committed crimes on
or after the statute’s effective date, September 28, 2010. (§ 4019, subd. (g).) Therefore, the change to section 4019 was
explicitly prospective. SB 76 also added
section 2933, subdivision (e)(1), which stated:
“Notwithstanding
Section 4019 and subject to the limitations of this subdivision, a prisoner
sentenced to the state prison under Section 1170 for whom the sentence is
executed shall have one day deducted from his or her period of confinement for
every day he or she served in a county jail, city jail, industrial farm, or
road camp from the date of arrest until state prison credits
. . . .â€
New
subdivision (e)(2) to section 2933 reincorporated the same behavioral standards
from section 4019. Effectively, the
Legislature granted the beneficial credit accrual rate to any defendant
ultimately sentenced to prison.
Defendants sentenced to local custody, however, were only eligible for
the section 4019 credits, and could not earn the more beneficial credits under
section 2933, subdivision (e)(1).
In
October of 2011, sections 4019 and 2933 were amended again. (See Stats. 2011, ch. 15, § 1
[Assem. Bill No. 109]; hereafter referred to as Realignment.) The Governor signed Assembly Bill No. 109 in
April of 2011. Generally, Assembly Bill
No. 109 shifted responsibility for both housing and supervising certain felons
from the state to individual counties.
With regards to the portions of the legislation that are relevant to his
case, Realignment amended hundreds of felony offenses, including the offenses
for which defendant was convicted, to be punishable by imprisonment in the
county jail under section 1170, subdivision (h), instead of imprisonment in
state prison. As a result, felons who
were eligible to be sentenced under Realignment will serve their terms of
imprisonment in local custody instead of state prison. (§ 1170, subd. (h)(3).)
With
respect to custody credits, Realignment changed the accrual rate of section
4019 credits again. Defendants can now
earn two days of credit for every two days served in custody. (§ 4019, subd. (f).) Section 2933, subdivision (e), was
deleted. The new credits in section 4019
are expressly available only to defendants who committed their crimes after
October 1, 2011. (§ 4019, subd.
(h).) The Legislature also amended
subdivision (g), to clarify that the changes made to section 4019 under SB 76
still apply to defendants committed to custody for “a crime committed on or
after the effective date of that act,†which was September 28, 2010. (§ 4019, subd. (g).) Finally, section 4019, subdivision (h), states,
in part: “Any days earned by a prisoner
prior to October 1, 2011, shall be calculated at the rate required by the prior
law.â€
During
the briefing stages of this case, the California Supreme Court decided
314. Brown
held that amendments to section 4019, which took effect in January 2010,
operated prospectively, and thus applied to prisoners who served their
presentence time after the amendment took effect. (Brown,
supra, 54 Cal.4th at p. 323.) In reaching this conclusion, the
applying section 4019 prospectively did not violate equal protection. The court reasoned that prisoners who serve
time before and after a conduct credit statute takes effect are not similarly
situated because “the important correctional purposes of a statute authorizing
incentives for good behavior [citation] are not served by rewarding prisoners
who served time before the incentives took effect and thus could not have
modified their behavior in response.†(
C.
Actual Days in Custody in Case 1
The
trial court found that defendant had served 292 days in actual custody on Case
1. The People contend that the trial
court erred in awarding 109 days of the 292 days, because defendant served the
109 days concurrently for both Case 1 and Case 2. The People argue that the 109 days should
have been awarded for days in actual
custody only in Case 2. We disagree.
In
this case, there is no dispute as to when
defendant was in custody. As the People
note, and defendant agrees, that defendant served a year as a condition of probation
on Case 1.
“The
version of section 4019 in effect for the duration of appellant’s post-sentence
local custody time awarded two days of conduct credit for every two days of
actual credit. Accordingly, when he was
released from local custody, appellant should have had 365 days of credit
comprised of half actual days, and half conduct credits. This would put appellant’s actual credits
around 183 days.â€
Moreover,
there is no dispute as to the number of days that defendant was in custody
after the filing of the complaint in Case 2 and petition to revoke probation on
July 7, 2011.
“It
seems the trial court (relying on the probation department recommendation)
added appellant’s actual credits from Case 1 (183) to his presentence actual
credits from Case 2 (109), and arrived at 292 actual credits.â€
Defendant
agrees that he spent 102 days in custody in both Case 1 and Case 2, which he
served concurrently, after the filing of Case 2.
The
People, however, argue that the court erred in awarding, to Case 1 as well as
to Case 2, the 109 days of actual credit that had been served after the filing
of the complaint and petition to revoke probation. The People argue that credit is inappropriate
on both cases because defendant served concurrent terms. The rule, however, is whether “the custody to
be credited is attributable to proceedings related to the same conduct for
which the defendant has been convicted.â€
(§ 2900.5, subd. (b).)
Where
probation has been revoked for exactly the same conduct that forms the basis of
a new charge, then credit on both the new case and the case in which probation
has been revoked is appropriate. (
1467, 1485.) For this rule to apply, the
prisoner must be held on both the probation revocation and on the new
case. (People v. Pruitt (2008) 161 Cal.App.4th 637, 642, 644, 648, 649,
citing People v. Huff (1990) 223
Cal.App.3d 1100, 1104, and People v.
Williams (1992) 10 Cal.App.4th 827, 834.)
Here, defendant was held on both Case 1 and Case 2 for the
(b), the trial court properly awarded presentence actual custody credit for 109
days in both cases.
Notwithstanding,
the People contend that “[b]ecause the time appellant spent in custody on Case
2 (109 days) was attributable to the second offense, and he received concurrent
terms, those actual credits should not be counted on Case 1. California sentencing law applies a merger
rule to consecutive sentences, but
not to concurrent sentences.†In support, the People cite to
761, and In re Rojas (1979) 23 Cal.3d
152; the cases, however, do not apply.
subdivision (a) (limiting conduct credits to 15 percent for a person convicted
of a violent felony), applied to a nonviolent felony when a prisoner was
serving sentences on both a violent and a nonviolent felony. (In re
Reeves, supra, 35 Cal.4th at p.
768.) The Supreme Court held that the
limitation applies to a sentence for a nonviolent felony that is being served
concurrently to a sentence for a violent felony, but only until the sentence on
the violent felony was complete. (
sentence on the nonviolent felony, the prisoner was no longer subject to that
15 percent limit on conduct credits. (
dealt with section 2933.1, not section 2900.5.
Reeves does not apply because
defendant does not make an argument that he should accrue credits at different
rates and that the sentences on his two cases are “merged,†as they would be
for a consecutive sentence.
contention.
Similarly,
People v. Nunez is also inapplicable because
it too did not address whether the defendant in that case should have received
presentence credit when held simultaneously on a probation violation and a new
charge. Instead, Nunez addressed whether, when held simultaneously on a probation
violation on a violent felony and on a new nonviolent offense, the presentence
credits on both cases would be subject to the 15 percent limit in section
2933.1, subdivision (c). (
Furthermore,
the People’s reliance on In re Rojas,
supra, 23 Cal.3d 152, is
misplaced. In Rojas, the Supreme Court held that section 2900.5 applies to the
award of presentence credit “‘only where’ custody is related to the ‘same
conduct for which the defendant has been convicted.’†(Rojas,
at p. 155.) The court did not award
credits in Rojas because “the
defendant was simultaneously serving a prison term for a prior
at p. 154, emphasis added.) In this
case, there is no dispute that the revocation of probation in Case 1 was for
exactly the same conduct as the basis of the charge in Case 2. Moreover, defendant was held in custody in
both Case 1 and Case 2 from July 15, 2011.
On July 15, 2011, the court minutes show, as follows as to both Case 1
and Case 2: “Remanded to Custody of
Riverside Sheriff.â€
The
period of time from July 15, 2011, until the sentencing date of October 24,
2011, represents a period of 102 days.
The court awarded credits for a period of 109 days actual custody.
section 2900.5, subdivision (b) and People
v. Johnson, supra, 150
Cal.App.4th 1467, the court properly awarded 109 days actual custody credit in
both Case 1 and Case 2. Therefore,
defendant’s actual custody credit of 292 days is affirmed.
1
Although
both parties agree that defendant is entitled to day-for-day credits under
section 4019, defendant’s conduct credits must be recalculated under
314. In Brown, the Supreme Court held that the amendment to section 4019
effective January 25, 2010, does not apply to days served in custody prior to
that date. (Brown, at p. 322.) The court
held “that prisoners whose custody overlapped the statute’s operative date
(Jan. 25, 2010) earned credit at two different rates.†(Ibid.) And, because prisoners serving time prior to
January 25, 2010, are not similarly situated with prisoners serving time after
that date, the court rejected an equal protection challenge to the differential
treatment of persons serving time prior to January 25, 2010. (Ibid.)
In
Case 1, defendant was arrested on January 5, 2010, and was found at his
sentencing on June 4, 2010, to have served 16 actual days in custody; these
days were served prior to January 25, 2010.
Those days of actual custody were prior to January 25, 2010, because
defendant had been released on his own recognizance by January 21, 2010. Defendant remained out of custody until he
was remanded on June 4, 2010.
Under
People v. Brown, supra, 54 Cal.4th 314, the credits on 16 days of actual custody
should be calculated under the version of section 4019 effective prior to
January 25, 2010. Under that law, on 16
days, defendant would receive two days of conduct credit for every four actual
days served in custody. Therefore,
defendant would receive eight days of conduct credit.
For
the days of custody after January 25, 2010, defendant would receive day-for-day
credit. Subtracting the 16 days from the
total of 292 days of actual custody, the balance is 276 days in actual custody
subject to the post-January 25, 2010, rule.
Accordingly,
defendant’s judgment should be modified to reflect (1) 16 days of actual
custody and eight days of conduct credit for days served prior to January 25,
2010; and (2) 276 days of actual custody and 276 days of conduct credit for the
days served after January 25, 2010, for a total of 576 days.
2
As
provided in detail above, defendant was arrested on April 28, 2011 in Case
2. He was sentenced on October 24,
2011. The trial court awarded defendant
109 actual days in custody and 54 conduct credits. Defendant contends that he is entitled to
additional conduct credits under section 4019.
The People agree.
As
discussed above, Realignment shifted responsibility for both housing and
supervising certain felons from the state to individual counties. As a result, felons, like defendant, who are
eligible to be sentenced under Realignment, will serve their terms of
imprisonment in local custody, instead of state
prison. Under the credits provision
in effect at the time defendant committed his crime, defendant would have been
entitled to both section 4019 credits (at a rate of two for four) and section
2933, subdivision (e)(1) credits (bringing the total conduct credits up to a
day for a day) because he received a prison sentence and does not appear to
have a disqualifying prior conviction.
However, because of Realignment, defendant was sentenced to a “prisonâ€
sentence, but to be served in county jail.
Denying defendant the section 2933, subdivision (e)(1) credits that he
otherwise would receive would violate ex post facto principles.
Section
4019, subdivision (h), states, in part:
“Any days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.†Moreover, denial of the credits would violate
the constitutional prohibition against ex post facto laws. In Weaver
v. Graham (1981) 450 U.S. 24, the United States Supreme Court found
Florida’s application of a change in its conduct credit provisions was an
unconstitutional ex post facto law because it effectively “chang[ed] the legal
consequences of acts completed before its effective date.†(Id.
at p. 31.)
In
this case, the application of Realignment to defendant effectively altered the
consequences of his actions completed prior to the change in the law. The change in the law meant that defendant
was housed in a local custody facility instead of prison. Had defendant gone to prison, he would have
been entitled to the additional credits under section 2933. Accordingly, under Weaver v. Graham, supra,
450 U.S. 24, defendant is entitled to an additional 55 days of conduct
credit. The judgment in Case 2 should be
modified to award a total of 218 credits (109 actual and 109 conduct).
IV.
DISPOSITION
In
case No. INF10000212, the trial court is directed to correct the minute order
dated October 24, 2011, to reflect an aggregate award of 576 days (consisting
of 16 days of actual custody and eight days of conduct credit for days served
prior to January 25, 2010; and 276 days of actual custody and 276 days of
conduct credit for days served after January 25, 2010). Moreover, in case No. INF1101571, the trial
court is directed to correct the minute order dated October 24, 2011, to
reflect an aggregate award of 218 days (consisting of 109 days of actual
custody and 109 days of conduct credit).
The trial court is directed to deliver certified copies of the corrected
minute orders and abstract of judgment to the
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORT
MCKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Defendant received a total of 109 actual days
of custody in Case 2. From July 15,
2011, to October 24, 2011, defendant earned 102 of those credits. Therefore, it appears that he must have
earned the additional seven credits when he was first arrested in Case 2. There is nothing in the record providing the
exact dates that defendant was in custody.
