P. v. Vasquez
Filed 2/27/12 P. v. Vasquez CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN
VASQUEZ,
Defendant and Appellant.
A132091
(San Mateo
County
Super. Ct.
No. SC0711933B)
Pursuant
to a negotiated disposition, defendant Juan Vasquez was sentenced to
10 years, four months in state prison. At the time of sentencing, the court awarded
defendant credit for 420 actual days served, plus 62 days of local conduct
credit, for a total of 482 days. On
appeal, defendant challenges the calculation of the conduct credits, arguing
that he was entitled to 63 days, rather than the 62 days awarded. As the People concede, defendant is
correct. We therefore order the abstract
of judgment amended to reflect 63 local conduct credits, for a total of 483
credits.
Defendant waived
probation for the preparation of a presentencing report. The record is therefore devoid of any facts
pertaining to the incident that lead to the charges against defendant. Since the only issue before us concerns the
calculation of credits, however, the factual background is not relevant. It is instead enough to note that defendant
was charged with 18 counts and numerous enhancements, and ultimately pleaded no
contest to two counts of robbery of an
inhabited dwelling, one count of elder
abuse, two counts of extortion,
and one count of taking a motor vehicle without the owner’s permission. He also admitted that he was armed with a
knife when he committed the robbery and extortion; that the victim in the elder
abuse count was more than 70 years old and suffered great bodily injury; and
that the two robbery counts were serious and violent felonies.
As noted, pursuant
to a negotiated disposition, the
court sentenced defendant to 10 years, four months in state prison. After imposing fines and fees, the court
turned to credits for time served, and the following colloquy ensued:
“COUNSEL FOR
DEFENDANT: I have got 420. 365 plus 55 for 420 and another 15 percent
which is 63 for 483 total.
“PROBATION: That’s correct.
“COUNSEL FOR
DEFENDANT: 420 plus 63 good time/work
time.
“COURT CLERK: It
can’t be an odd number.
“THE COURT: It has
to be 62. So 482 credit for time
served.”
Accordingly, the
abstract of judgment reflected 420 actual credits and 62 local conduct credits,
for a total of 482 credits.
Defendant timely
appealed.
Penal Code section
2933.1, subdivision (c) provides:
“Notwithstanding Section 4019 or any other provision of law, the
maximum credit that may be earned against a period of confinement . . . .
shall not exceed 15 percent of the actual period of confinement for any person
specified in subdivision (a).”
Subdivision (a) then specifies that such a person includes “any person
who is convicted of a felony offense listed in subdivision (c) of Section
667.5 . . . .” As
defendant was convicted of a felony offense listed in section 667.5, his
presentence custody credit was thus limited to no more than 15 percent of
his actual period of confinement. (See
50 Cal.App.4th 810, 817.) At the
sentencing hearing, counsel for defendant correctly noted that the conduct
credits equaled 63 days: 15 percent of
420.
The miscalculation
apparently stemmed from the court clerk’s mistaken belief that the “odd number”
credit rule created by Penal Code section 4019 applied in this situation. It did not because defendant’s conduct credit
was limited by section 2933.1 and was not calculated pursuant to section 4019.
The abstract of
judgment is ordered amended to reflect 63 local conduct credits and 483 total
credits.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
