P. v. Zarate
Filed 6/17/13
P. v. Zarate CA4/1
Opinion after transfer 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
OPINION AFTER TRANSFER FROM THE CALIFORNIA
SUPREME COURT
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SALVADOR BRICENO ZARATE,
Defendant and Appellant.
D056837
(Super. Ct. No. JCF24760)
APPEAL from
a judgment of the Superior Court of
County, Christopher W. Yeager, Judge.
Affirmed.
Michelle
Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and
Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Salvador Briceno Zarate appeals a judgment following his
plea of no contest to one count of sale
or transportation of marijuana (Health & Saf. Code, § 11360, subd.
(a)). On appeal, he contends the trial
court erred at his February 2010 sentencing by awarding him conduct credit for
local custody time served before January 25, 2010, in accordance with a former
version of Penal Code
name="_ftnref1" title="">[1]
section 4019 rather than the amended version in effect on the date of his
sentencing. In our original opinion,
939, review granted May 18, 2011, S191676 (Zarate
I), we concluded the trial court erred by not applying the amended version
of section 4019 to all of the days served by Zarate in presentence local
custody.
The
California Supreme Court granted the People's petition for review of
consideration and disposition of a related issue in People v. Brown, S181963. On
June 18, 2012, that court issued its opinion in People v. Brown (2012) 54
Cal.4th 314 (Brown), concluding the
amended version of section 4019 applies prospectively from January 25, 2010,
and does not apply to presentence custody served before that date. (Brown,
at pp. 318, 322-323.)
On May 15,
2013, the Supreme Court transferred this case to us with directions to vacate
our decision in Zarate I and to
reconsider the cause in light of Brown. Pursuant to the Supreme Court's directions,
we now vacate our decision in Zarate I and
issue this opinion concluding Zarate is not entitled to presentence custody
credits pursuant to the amended version of section 4019 for custody served
before January 25, 2010, the operative date of the amendment to section
4019. Accordingly, we hold the trial court
correctly determined the number of presentence custody credits to which Zarate
is entitled.
FACTUAL
AND PROCEDURAL BACKGROUND
On or about
November 2, 2009, Zarate transported marijuana in Imperial County. On January 28, 2010, an information charged
him with one count of sale or transportation of marijuana (Health & Saf.
Code, § 11360, subd. (a)) and one count of possession of marijuana for
sale (Health & Saf. Code, § 11359).
On February
18, 2010, pursuant to a plea agreement,
Zarate pleaded no contest to the Health and Safety Code section 11360,
subdivision (a), count with a stipulated sentence of two years in state prison;
the other count was dismissed. At that
hearing, the trial court sentenced Zarate to two years in state prison and
awarded him a total of 115 days of presentence custody credit. The court awarded Zarate 22 days of conduct
credit for 44 days in actual custody before January 25 and 24 days of conduct
credit for 25 days in actual custody on and after that date. The court denied Zarate's request for
"day for day" conduct credit for all of his days in custody pursuant
to the "new law" (i.e., amended § 4019), including his days
served in custody prior to January 25.
Zarate timely filed a notice of appeal.
As discussed above, after we issued our opinion in Zarate I, the California Supreme Court granted review and then
transferred the cause to us to reconsider our decision in light of
DISCUSSION
I
A defendant
"sentenced to prison for criminal conduct is entitled to credit against
his [or her] term for all actual days of [presentence] confinement solely
attributable to the same conduct."
(People v. Buckhalter (2001)
26 Cal.4th 20, 30 (Buckhalter).) That confinement or custody includes days
spent in jail before sentencing.
(§ 2900.5, subd. (a).)
Pursuant to section 4019, a defendant may also earn "conduct
credit" for good behavior (i.e., compliance with rules and regulations)
and satisfactory performance of any labor assigned him or her during
presentence custody. (§ 4019,
subds. (b), (c); People v. Dieck
(2009) 46 Cal.4th 934, 939, fn. 3; Buckhalter,
at p. 30.)
Section
2900.5, subdivision (a), provides:
"In
all felony and misdemeanor convictions, either by plea or verdict, when the
defendant has been in custody, including, but not limited to, any time spent in
a jail . . . , all days of custody of the defendant, . . .
confinement pursuant to Section 4019, shall be credited upon his or her
term of imprisonment . . . ." (Italics added.)
Section 2900.5, subdivision (d), provides:
"
the sentence to determine the date or dates of any admission to, and
release from, custody prior to sentencing
and the total number of days to be
credited pursuant to this section.
The total number of days to be credited shall be contained in the
abstract of judgment provided for in Section 1213." (Italics added.)
The California Supreme Court has stated that when a trial
court imposes a sentence, it "has responsibility to calculate the exact
number of days the defendant has been in custody 'prior to sentencing,' add
applicable good behavior credits earned pursuant to section 4019, and reflect
the total in the abstract of judgment."
(Buckhalter,
Prior to
January 25, 2010, a former version of section 4019 (1982 version) provided that
a defendant earned two days of conduct credit for every four actual days in
local custody. (Stats. 1982, ch. 1224,
§ 7, pp. 4553-4554.) However,
section 4019 was amended, effective January 25, 2010, to provide qualifying
defendants with increased conduct credit of two days for every two actual days
in local custody.
title="">[2] (Stats. 2009, 3d Ex. Sess. 2009-2010, ch.
28X, § 50.) That amended version of
section 4019 provided: "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).)
name="_ftnref3" title="">[3] The provisions of section 4019 apply to those
defendants confined in a county jail for time served, "including all days
of custody from the date of arrest to the date on which the serving of the
sentence commences, under a judgment of imprisonment" or, alternatively,
for time served "following arrest and prior to the imposition of sentence
of a felony conviction."
(§ 4019, subds. (a)(1), (a)(4).)
II
Conduct Credit
Zarate
contends the trial court erred in sentencing him by applying the 1982 version
of section 4019 to time he was in local custody prior to January 25, 2010, and
thereby awarding him only 22 days of conduct credit for the 44 actual days he
was in custody during that period. He
asserts the court was required to apply the January 25 amended version of
section 4019 in effect on the date of his sentencing (February 18, 2010) to
whether before or after January 25, 2010.
He argues he should have received 44 days of conduct credit for the 44
actual days he was in custody prior to January 25, 2010, for a total of 68 days
of conduct credit for all 69 actual days in custody prior to his February 18
sentencing.
We conclude
the trial court did not err in sentencing Zarate on February 18, 2010, by
applying the former version of section 4019 to the time he served in local
custody prior to January 25, 2010. At
the time of his sentencing on February 18, the trial court was required to
calculate the exact number of days Zarate had been in custody prior to
sentencing, add applicable conduct credits earned pursuant to section 4019, and
reflect the total in the abstract of judgment.
(§ 2900.5, subds. (a), (d); Buckhalter,
supra, 26 Cal.4th at p. 30.)
In
addressed the issue of whether section 4019, as amended effective January 25,
2010, applied retroactively to benefit defendants who served time in local
custody before January 25. (
Brown held section 4019
"applied prospectively, meaning that qualified prisoners in local custody
first became eligible to earn credit for good behavior at the increased rate
beginning on the statute's operative date [January 25, 2010]." (Ibid.) Particularly important to this case,
"To
apply [the January 25, 2010 version of] section 4019 prospectively necessarily
means that prisoners whose custody overlapped the statute's operative date
(Jan. 25, 2010) earned credit at two different rates. . . . Credits are determined and added to the
abstract of judgment at the time of sentencing, but they are
defendant's confinement as a predefined, expected reward for specified good
behavior." (Brown, supra, 54 Cal.4th
at p. 322.)
Accordingly, Brown
concluded that version of section 4019 operated prospectively only to local
custody served on or after January 25, 2010.
(Id. at pp. 318, 322-323.)
Applying
this case, we conclude the trial court at sentencing correctly awarded Zarate
22 days of conduct credit for 44 days in actual custody before January 25,
2010, and 24 days of conduct credit for 25 days in actual custody on and after
that date. The former or 1982 version of
section 4019 applied to all local custody served by Zarate before January 25,
2010. The amended, or January 25, 2010,
version of section 4019 applied prospectively to all local custody served on or
after January 25, 2010. (
awarding Zarate a total of 115 days of presentence custody credit.
DISPOSITION
The
judgment is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] Pursuant to the January 25, 2010, version of section 4019,
defendants can qualify for such conduct credit unless they have current or
prior convictions for serious or violent felony offenses or are required to
register as sex offenders. (§ 4019,
former subds. (b)(1), (c)(1), as amended by Stats. 2009-2010, 3d Ex. Sess., ch.
28X, § 50.)
