P. v. Orozco
Filed 10/7/13 P. v. Orozco CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
GABRIEL OROZCO,
Defendant and Appellant.
B245766
(Los Angeles
County
Super. Ct.
No. VA123240)
APPEAL
from a judgment of the Superior Court
of
County, Robert J. Higa, Judge.
Affirmed as modified.
James
C. Huber, 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, Lawrence M.
Daniels and Connie H. Kan, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________
Gabriel Orozco appeals from the judgment entered
following his conviction by a jury of possession
of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)),
possession of concentrated cannabis (Heath & Saf. Code, § 11357, subd. (a))
and possession of methamphetamine (Health & Saf. Code, § 11377, subd.
(a)). Orozco’s sole contention on appeal
is his presentence custody credits
should be corrected. We affirm the
judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Orozco was
found to be in possession of concentrated marijuana and methamphetamine on December 13, 2011, and a handgun and
methamphetamine on January 12, 2012. Orozco was thereafter charged in an amended
information with one count each of possession of a firearm by a felon and
possession of concentrated cannabis and two counts of possession of
methamphetamine. The information
specially alleged a criminal street gang
enhancement (§ 186.22, subd. (b)(1)(A)) and six prior prison term enhancements
(§ 667.5, subd. (b)). Represented by appointed counsel, Orozco pleaded not
guilty and denied the special allegations.
A jury
found Orozco guilty on all counts with the exception of count 2, possession of
methamphetamine. The jury also found not
true the alleged criminal street gang enhancement.
In a
bifurcated proceeding, Orozco admitted the six prior prison term enhancement
allegations. The trial court found four
of them true and struck one prior prison term enhancement for sentencing
purposes.
The trial
court sentenced Orozco to an aggregate state
prison term of six years, consisting of the upper term of three years for
possession of a firearm by a felon, plus three years for the three prior prison
term enhancements. The court also
imposed concurrent terms of two years each for possession of concentrated
cannabis and possession of methamphetamine.
The court awarded Orozco 526 presentence custody credits (351 actual
days and 175 days of conduct credits).
Orozco timely filed a notice of appeal.
DISCUSSION
Orozco
contends, the People acknowledge and we agree the trial court erred in
calculating his award of presentence custody credits as 526 days rather than as
701 days. Orozco’s crimes were committed
on December 13, 2011 and January 13, 2012, well after the
effective date of the current version of section 4019. Accordingly, Orozco is entitled to the
current one-for-one credit or an additional 175 days of conduct credits under
section 4019, subdivision (f).
DISPOSITION
The
judgment is modified to reflect that Orozco has earned 701 days of presentence
custody credits, consisting of 351 days in actual custody and 350 days of
conduct credits. The superior court is
directed to prepare an amended abstract of judgment and to forward it to the
WOODS,
J.
We concur:
PERLUSS, P. J. SEGAL,
J.
name="_ftn1" title="">[1] Statutory
references are to the Penal Code, unless otherwise indicated.
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
