P. v. Alexander

Filed 6/16/06 P. v. Alexander CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In November 2002, in case No. 144089, defendant Vontino Alexander pled no contest to second degree robbery (Pen. Code, § 211[1]). The court suspended the imposition of sentence and placed defendant on five years' probation on the condition, among others, that he serve one year in the county jail. In January 2005, in case No. 148583, defendant was convicted of unlawfully driving or taking a motor vehicle (Veh. Code, § 10851, subd. (a)) and of evading a police officer (Veh. Code, § 2800.2, subd. (a)). The court also found that defendant had violated his probation in case No. 144089.

In case No. 148583, the court sentenced defendant to a term of two years for unlawfully driving or taking a vehicle, doubled to four years because defendant had suffered a prior conviction (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) It sentenced defendant to a concurrent term of one year four months for evading a police officer. In case No. 144089, the court sentenced defendant to a term of one year. On February 28, 2005, the court ordered the one-year term to be served consecutively to the term to be served in case No. 148583, but on March 21, 2005, in response to defendant's invitation, the court resentenced defendant to concurrent terms. (See § 1170, subd. (d).)

Defendant appeals, contending that he was not given the proper number of presentence credits.

Facts

On the morning of May 22, 2004, David Perlson, a resident of San Francisco, reported that his car, a BMW Z4, had been stolen. On July 14, 2004, Oakland Police Sergeant Ersie Joyner saw a car matching the description of the stolen vehicle being driven on Bancroft, in Oakland. Sergeant Joyner attempted to stop the vehicle, but the driver refused to stop, leading the officer on a high-speed chase. Sergeant Joyner abandoned the chase out of concern that it would cause injury to a citizen. The police located the car a short time later, parked partially on the sidewalk. A police dog picked up a scent from the vehicle and traced it to defendant, who was hiding in a nearby building. Defendant's fingerprints were found on the stolen vehicle.

Discussion

I.

Case No. 148583

Defendant contends that the court erred in awarding him only 35 days of presentence good time/work time credits in case No. 148583 for 230 actual days served.

Section 4019 provides that a defendant is entitled to one day work time credit and one day good time credit for every six days served, presentence, in a specified facility. Under that section, defendant earned 114 days of section 4019 credits. Section 2933.1, subdivision (c), provides that the credit that may be earned by persons convicted of violent felonies may not exceed 15 percent of the actual period of presentence confinement. Defendant was not convicted of a violent felony in case No. 148583, but was convicted of a violent felony in case No. 144089. He concedes that if his sentences for case Nos. 148583 and 144089 are considered together as one unified term, the entire term is subject to the restriction of section 2933.1 (see People v. Ramos (1996) 50 Cal.App.4th 810, 817), justifying the award of only 35 days' presentence credit. Defendant, citing People v. Begnaud (1991) 235 Cal.App.3d 1548, 1552 (Begnaud),[2] concedes further that his sentences in both cases would be viewed as a single, unified sentence if the term for case No. 144089 was made consecutive to the term for case No. 148583. Defendant points out, however, that he was sentenced to concurrent terms, arguing that in such circumstances he is entitled to all section 4019 presentence credits against the term imposed in case No. 148583.

A similar argument was addressed and rejected by the court in In re Reeves (2005) 35 Cal.4th 765 (Reeves) in connection with postconviction worktime credits. Section 2933.1, subdivision (a), provides that a defendant convicted of a violent felony may accrue no more than 15 percent of worktime credit. The defendant in Reeves, like defendant here, was sentenced to concurrent terms: a five-year sentence for a violent felony and a 10-year sentence for a nonviolent felony. (Id. at p. 769.) He contended that the 10-year term was not subject to the restriction imposed by section 2933.1. The Supreme Court disagreed, finding that once the defendant had completed the shorter term, imposed as a result of the violent felony, he was entitled to accrue to the full amount of worktime credits, but â€