P. v. Ambrosy
Filed 2/21/13 P. v. Ambrosy CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
PITER ALBERT AMBROSY,
Defendant and
Appellant.
G046757
(Super. Ct.
No. 11NF2303)
O P I N I O
N
Appeal from a
postjudgment order of the Superior Court
of
County, Vickie L. Hix, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Marta I. Stanton, 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, Gary Brozio and Meagan J. Beale, Deputy
Attorneys General, for Plaintiff and Respondent.
*
* *
Defendant
Piter Albert Ambrosy appeals the court’s calculation of custody credits at a
probation reinstatement hearing. We
affirm.
FACTS
On
July 17, 2011, defendant
“unlawfully took the property of another [and] withheld said property, knowing
the property was stolen and obtained by theft, without the owner’s
consent.†A felony complaint was filed
against defendant on July 28, 2011,
pursuant to which defendant was charged with burglary (Pen. Code, §§ 459-460),
(a)), and grand theft (§ 487, subd. (c)).
Defendant was arraigned on July
29, 2011.
On
August 10, 2011, defendant
pleaded guilty to receiving stolen
property and grand theft. The court
dismissed the burglary count. The court
advised defendant that the maximum sentence he faced was three years eight
months in state prison. But pursuant to
the plea bargain reached with the prosecutor, the court placed defendant on
formal probation for three years, subject to various terms and conditions,
including 180 days in county jail. The
court awarded credit to defendant for time served, including 16 actual credits
and eight conduct credits for a total of 24 credits. Defendant apparently served his remaining
time in custody and was released.
Defendant
was arrested for petty theft on December
6, 2011. On February 2, 2012, defendant’s
probation officer filed a petition for arraignment on probation violation. The court revoked probation at a hearing held
on February 6, 2012, based
on the existence of a pending criminal case (i.e., the Dec. 2011 theft); the
record from this other case is not before us.
A formal hearing was set for March
5, 2012.
On
March 5, 2012, defendant
admitted the probation violation and the court reinstated probation. The court also modified the grant of
probation to add a condition that defendant serve an additional 90 days in county jail.
With regard to defendant’s stay in custody in February and March of
2012, the court awarded defendant 34 actual credits and 16 conduct
credits. Thus, the court’s intent was
clearly that defendant would serve 40 additional
days in county jail after March 5, 2012.
Defendant
argued at the March 5, 2012 hearing and in a subsequent August 2012 motion that
he was entitled to additional conduct credits.
The court rejected defendant’s argument on both occasions.
DISCUSSION
Defendant
claims he was provided with insufficient credits under sections 2900.5 and
4019.
Defendant’s
first contention is both confusing and wrong.
Defendant asserts he was entitled under section 2900.5 to 19 additional
credits at the March 5, 2012 probation reinstatement hearing, at which he was
ordered to serve an additional 90 days in county jail (subject to 50 credits
resulting from time in custody in Feb. and Mar. 2012). Defendant points to his initial arrest and
pre-plea detention in July and early August 2011 as the source of the alleged
missing 19 days of credit.
name="_ftnref2" title="">[2] But as explained above, defendant’s pre-plea
jail time was already credited against the 180 days in county jail imposed as a
condition of formal probation on August 10, 2011. The court subsequently revoked and then
reinstated probation, a legitimate procedure not contested on appeal. (See People
v. Arnold (2004) 33 Cal.4th 294, 298-301 (Arnold).) The court modified
(§ 1203.2, subd. (b)(1)) its initial probation terms and conditions by
including an additional 90 days in
county jail as a condition of the reinstatement of probation. Defendant does not challenge the legitimacy
of this order.
Nonetheless,
defendant contends section 2900.5 requires double counting of defendant’s
initial jail time. Section 2900.5,
subdivision (a), states in relevant part that “[i]n all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in
custody, including, but not limited to, any time spent in a jail, . . .
including days served as a condition of probation in compliance with a court
order, credited to the period of confinement pursuant to Section 4019, and days
served in home detention pursuant to Section 1203.018, shall be credited upon his or her term of imprisonment . . . . If the total number of days in custody
exceeds the number of days of the term of imprisonment to be imposed, the
entire term of imprisonment shall be deemed to have been served.†(Italics added.)
“Prior
to 1972, persons convicted of a felony were not entitled to credit against
their state prison sentences for ‘back time,’ i.e., periods of incarceration in
county jail awaiting trial and judgment.
In 1971, . . . section 2900.5 was enacted to grant
credit for back time.†(
Cal.App.3d 389, 391.) “The history
of section 2900.5 points to the Legislature’s intent. When this section was first enacted the
original wording provided that all the days a defendant spent in jail from the
date of arrest to the day on which sentence was imposed should be credited upon
the defendant’s sentence. The
legislative purpose appears to have been to eliminate the unequal treatment
suffered by indigent defendants who, because of their inability to post bail,
served a longer overall confinement than their wealthier counterparts.†(In re
Rojas (1979) 23 Cal.3d 152, 156; see also People v. Kunath (2012) 203 Cal.App.4th 906, 910 [“The purpose
of section 2900.5 is to equalize the total time in custody between those who
suffered presentence custody on unproven charges and those who did notâ€].)
Had
defendant been sentenced to prison in March 2012 after his probation
revocation, it is clear section 2900.5 would require the court to credit
defendant’s time served (180 days served on the initial probation condition
including all credits applied in lieu of actual time in custody, 34 additional
actual days in early 2012, and 16 conduct credits in early 2012) against his
prison sentence. (See
Cal.App.3d 311, 317 [a defendant whose probation was revoked would “be
entitled to a credit on the state prison sentence of both the period of
presentence detention and the days served in the county jail as a condition of
probationâ€]; but see Arnold,
[defendant can prospectively waive credits for time served in local jail
against possible future prison term].)
Obviously,
defendant has not been sentenced to state
prison as a result of his probation violation. But defendant points to section 2900.5,
subdivision (c), which defines “‘term of imprisonment’†to include “any period
of imprisonment imposed as a condition of probation or otherwise ordered by a
court in imposing or suspending the imposition of any sentence . . . .†(Ibid.) Since January 1, 1977, section 2900.5
provides for credits against a “‘period of imprisonment imposed as a condition
of probation . . . .’†(
that defendant was entitled to credits for his time in custody in July and
August 2011 with regard to the 180 days in county jail imposed in August
2011. For that matter, this subdivision
also makes clear defendant was entitled to credits for his time in custody in
February and March 2012 with regard to the 90 days in county jail imposed in
March 2012. Defendant claims the statute
also requires that all previous days
in custody (even though he claims only 19 of the credits from 2011) shall be
credited to his March 2012 “term of imprisonment,†i.e., his additional 90 days
in county jail to be served as a condition of probation.
The
absurdity of the result advocated by defendant is avoided by treating the
court’s March 2012 order as, in effect, ordering 270 total days of county jail
time (i.e., the initial 180 days plus the 90 subsequent days ordered in Mar.
2012). It was clearly the court’s intent
to require defendant to serve additional time in county jail for a grand total
of 270 total days, not to reduce defendant’s probation condition to 90 total
days in county jail. If defendant were
right in his characterization of the court’s order and interpretation of
section 2900.5, defendant would be entitled to 180 credits (as a result of his
initial stay in custody) against his 90 day term of imprisonment, not merely 19
credits.
Defendant’s
treatment by the court was in line with the statutory purpose of section
2900.5. Section 2900.5 equalizes
treatment for those unable to meet bail prior to their conviction and
sentence. Section 2900.5 does not set a
trap for a trial court judge seeking to extend a probationer’s time in county
jail (up to a total of one year) as a result of a probation violation. (See § 19.2 [probationer may be confined
in county jail for up to one year as a condition of probation]; see also
Cal.App.3d 183, 184-185 [“a defendant who has served one year in jail as a
condition of probation and who thereafter violates probation may be sentenced
to an additional period of up to one year in jail if he knowingly and
intelligently waives the provisions of . . . section
2900.5â€].)
Next,
defendant argues he was entitled to additional conduct credits at the March
2012 hearing pursuant to section 4019.
At the time of defendant’s commission of his underlying offenses in July
2011, section 4019 entitled defendants to “one-for-two conduct credits, which
is two days for every four days of actual time served in presentence
custody.†(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 (
effective October 1, 2011, to allow defendants to earn conduct credit at the
rate of one-for-one. (
(f) [“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 custodyâ€].)
Defendant concedes that the one-for-two formula applied to any conduct
credits he received prior to October 1, 2011.
The
question presented is whether defendant should have earned conduct credits in
February and March 2012 at the old “one-for-two†ratio or at the new
“one-for-one†ratio.
name="_ftnref3" title="">[3] At the March 5, 2012 hearing, the court
applied the old ratio and awarded defendant 34 actual and 16 conduct
credits. Defendant claims the court
erred by doing so, and should have instead awarded 34 conduct credits.
We
disagree. The new ratio “shall apply to
prisoners who are confined to a county jail . . . for a
crime committed on or after the effective date†of October 1, 2011. (§ 4019, subd. (g); Rajanayagam, supra, 211
Cal.App.4th at p. 49.) Defendant’s
crimes for which he is on probation and serving jail time were committed in
July 2011. As this court recently held,
“those defendants who committed an offense before October 1, 2011, are to earn
credit under the prior law.†(
who committed their crimes before October 1, 2011 does not amount to an equal
protection violation. (
991, 994-997; People v. Kennedy (2012)
209 Cal.App.4th 385, 397-400; People v.
Ellis (2012) 207 Cal.App.4th 1546, 1548.)
DISPOSITION
The
postjudgment order is affirmed.
IKOLA,
J.
WE CONCUR:
FYBEL, ACTING
P. J.
THOMPSON, J.
All statutory
references are to the Penal Code.
Oddly, defendant
claims only 13 days of actual credit and six days of conduct credit, even
though the court, on August 10, 2011, calculated defendant’s actual credits at
16 and conduct credits at eight. Indeed,
defendant actually served 180 days in county jail (including the 24 credits
awarded on Aug. 10 and additional credits earned thereafter) as a condition of
his probation before being released into the community and thereafter violating
his probation. It is unclear why
defendant is not claiming he can double count all 180 days of credit rather
than the arbitrary 19 days he selected.
