P. v. Vasquez
Filed 4/3/13 P. v. Vasquez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JORGE VASQUEZ,
Defendant and
Appellant.
2d Crim. No.
B237778
(Super. Ct. No.
2011005801)
(Ventura
County)
Jorge Vasquez (Vasquez)
challenges the trial court's calculation of presentence conduct credits and the
sufficiency of the evidence underlying one of his three convictions. We modify the judgment to include additional
conduct credits, but otherwise affirm.
FACTS
AND PROCEDURAL HISTORY
On January 25, 2011, Vasquez approached his former
girlfriend, Brianna Hernandez, in the parking lot outside the Vons market where
she worked. Vasquez grabbed for her car
keys. They struggled over them, back and
forth, for more than 30 seconds before Vasquez wrested them from her. After Hernandez fled into the Vons, Vasquez
drove off in her car without her permission.
Vasquez returned the car several minutes later, but he had damaged the
car and taken some of Hernandez's personal property.
Among other things,
Vasquez was charged with felony unlawful
taking of a vehicle (Veh. Code, § 10851); felony vandalism (Pen. Code, §
594);
and
misdemeanor battery (§ 243, subd. (e)(1)).
The jury convicted Vasquez of all three crimes.
Vasquez was sentenced on
October 6, 2011. The trial court imposed the upper term
sentence of three years on the unlawful taking count, followed by a consecutive
eight months term (one-third the two-year midterm) on the vandalism count. Citing section 654, the court stayed the
concurrent, 180-day sentence it imposed on the misdemeanor. The court ordered Vasquez to serve his time
in the county jail rather than state prison.
(§ 1170, subd. (h)(3).)
The court awarded
Vasquez 235 days of presentence credits for the time he actually spent in local
custody and 116 days of conduct credits.
The court applied a formula that awarded one day of conduct credit for
every two days of actual custody.
DISCUSSION
I.
Calculation of Presentence Conduct
Credits
Vasquez argues that the
trial court erred in awarding him only one day of conduct credit for each two
days of actual custody time. Vasquez
asserts that the trial court's resort to this rate was dictated by the
Realignment Act of 2011 (Act). Because
he would have received twice as many conduct credits under pre-Act law, and
because the Act was enacted after he committed his crimes, Vasquez contends
that the Act constitutes an unconstitutional
equal protection.
We need not reach
Vasquez's constitutional claims because the Act preserves his entitlement to
accrue conduct credits at the pre-Act rate.
The Act provides that "[a]ny days earned by a prisoner prior to
October 1, 2011, shall be calculated by the rate required by the prior
law." (§ 4019, subd. (h).) In People
v. Hul (2013) __ Cal.App.4th __ [2013 Cal. App. LEXIS 60, at pp. 5-7], the
court interpreted this provision to guarantee that a defendant, like Vasquez,
who commits his crime before the Act's passage but who is sentenced thereafter,
still earns conduct credits at the pre-Act rate. We agree with Hul. Vasquez is accordingly
entitled to 235 days of conduct credits, for a total of 470 days of credit.
II.
Sufficiency of the Evidence
Vasquez also challenges
the evidence supporting his misdemeanor domestic violence
"'. . . whether there is substantial evidence, i.e., evidence
from which a reasonable trier of fact could conclude that the prosecution
sustained its burden of proof beyond a reasonable doubt. . . .' [Citation]" (People
v. Assad (2010) 189 Cal.App.4th 187, 194.)
We review the evidence in the light most favorable to the verdict and
assess solely whether the supporting evidence is "'. . . reasonable,
inherently credible, and of solid value . . . .'" (Ibid.)
Vasquez argues that the
People did not adduce sufficient evidence that he ever touched Hernandez during
the struggle over her car keys. "A
battery is any willful and unlawful use of force or violence upon the person of
another." (§ 242.) This requires "a touching of the
victim." (People v. Marshall (1997) 15 Cal.4th 1, 38.) "[T]he least touching" will
suffice. (People v. Mansfield (1988) 200 Cal.App.3d 82, 88.)
Vasquez and Hernandez
"struggled" for at least 30 seconds, back and forth, before Vasquez
succeeded in wresting the car keys from her.
Given that they were struggling over car keys, it is reasonable for the
jury to infer from the testimony that Vasquez touched Hernandez in the midst of
their struggle. Moreover, there is
little doubt that he applied force to her during the struggle, which is itself
sufficient. (People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. 17 ["A
defendant can commit a battery indirectly by causing the force to be applied to
the person of another"].)
DISPOSITION
We
modify the abstract of judgment to reflect 235 days of conduct credit, for a
total of 470 days of custody credit. The
Superior Court Clerk shall prepare an amended abstract of judgment
incorporating this change and forward a certified copy to the
NOT TO BE PUBLISHED.
HOFFSTADT,
J.
We concur:
GILBERT, P. J.
PERREN, J.
>
Patricia M. Murphy, Judge
Superior
Court County of Ventura
______________________________
Gerald Peters, 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, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising
Deputy Attorney General, Chung L. Mar, Yun K. Lee, Deputy Attorneys General,
for Plaintiff and Respondent.
to the Penal Code unless otherwise stated.
acquitted Vasquez of a simple battery charge arising out of Vasquez's alleged
conduct in throwing the car keys at Hernandez after he returned the car.
