P. v. Perez
Filed 7/3/12 P.
v. Perez CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
GUSTAVO LARA
PEREZ,
Defendant and Appellant.
D061162
(Super. Ct. No. FBV4161)
APPEAL
from a judgment of the Superior Court of
Bernardino County, Miriam Ivy Morton, Judge. Affirmed as modified and remanded with
directions.
In
2008 Gustavo Lara Perez was convicted of second
degree murder (Pen. Code, § 187; all further statutory references are
to the Penal Code) for a killing occurring in 1992. On May 29, 2009, he
was sentenced to prison. Perez appealed,
and this court affirmed his conviction, reversed an order denying his
sentence. Respondent requests judicial
notice of this court's opinion in that appeal, and we grant the request.
On
December 1,
2011, on remand, the superior court denied
Perez's new trial motion and sentenced him to 15 years to life in prison, with the
possibility of parole. The court imposed
a $10,000 parole revocation fine (§ 1202.45). The court granted Perez presentence credits
for 1,028 actual days spent in custody as of May 29, 2009, and awarded no conduct credits.
Perez
appeals, contending the court's denial of conduct credits and imposition of the
parole revocation fine violated the proscription against
additional actual days' credit for the time he spent in custody between May 29, 2009, and December 6, 2011, which he
erroneously states was the date of resentencing. Respondent correctly concedes Perez is
entitled to conduct credits, and to actual credits for the period May 29, 2009, through December 1, 2011, and that the
parole revocation fine must be stricken.
Perez
is entitled to additional credit for the actual days he spent in custody
between the date of the original sentencing hearing and the date of
resentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 23.)
Section 2933.2,
subdivision (d), which proscribes an award of conduct credits to a defendant
convicted of murder, "shall only apply to murder that is committed on or
after the date on which this section becomes operative." Section 2933.2 became operative in
1998. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1317.) Section 2933.1, which limits worktime
credit to 15 percent for defendants convicted of violent felonies, including
murder (§ 667.5, subd. (c)(1)), "shall only apply to
offenses . . . that are committed on or after the date on
which this section becomes operative."
(§ 2933.1, subd. (d).)
Section 2933.1 became operative in 1994. (People
v. Camba (1996) 50 Cal.App.4th 857, 867.)
Application of the proscription in section 2933.2 and the
limitation in section 2933.1 to Perez violates
v. Graham (1981) 450 U.S. 24, 35-36.)
Because
section 1202.45 was enacted and became effective in 1995, after Perez's
crime, the parole revocation fine must be stricken. (People
v. Callejas (2000) 85 Cal.App.4th 667, 676.)
DISPOSITION
The
judgment is modified by striking the $10,000 parole restitution fine
(§ 1202.45). As so modified, the
judgment is affirmed. The case is
remanded to the trial court with the following directions. The court shall calculate and award Perez
additional actual and conduct credits as set forth in this opinion. The court shall prepare an amended abstract
of judgment and forward it to the Department
of Corrections and Rehabilitation.
McINTYRE,
J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
