P. v. Comi

Filed 3/2/07 P. v. Comi CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Affirmed and remanded with directions.

Law Offices of James Koester and James Koester for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

Defendant and appellant Todd Comi raises only one issue on appeal: Whether the trial court incorrectly limited his presentence custody credits. The People concede, and we agree, that the trial court erred. We therefore remand this matter to the trial court to recalculate custody credits.

FACTUAL AND PROCEDURAL BACKGROUND

Because the issue on appeal is limited, we briefly state the facts.

An information charged Comi with assault with a deadly weapon (Pen. Code,^[1] 245, subd. (a)(1)). The information also alleged, among other things, that Comi personally inflicted great bodily injury on the victim ( 12022.7, subd. (a)); that the crime was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); and that he had suffered two prior convictions under the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On June 5, 2006, Comi pled guilty to one count of assault with a deadly weapon and admitted his two prior strikes. The People agreed to dismiss the remaining prior allegations. The trial court sentenced him that same day to 25 years to life. The court also gave defendant 301 days of actual custody credits plus 45 days.

DISCUSSION

Comi contends on appeal that the trial court incorrectly limited his custody credits. We agree.

When a prisoner is confined in any county jail he or she will receive six days of credit for every four days spent in actual custody from the date of arrest to the date sentence is imposed. ( 4019.) But if the defendant is convicted of a felony listed in section 667.5, the defendant shall accrue no more than 15 percent of worktime credit. ( 2933.1, subd. (a).)

Here, the trial court, believing that this 15 percent limitation applied, awarded defendant only 45 days of worktime credit. Defendant, however, was not convicted of a felony listed in section 667.5. Had he, for example, pled guilty to the allegation that he inflicted great bodily injury, then the 15 percent limitation would apply. ( 667.5, subd. (c)(8).) Comi, however, did not plead guilty to that allegation; he only pled guilty to assault with a deadly weapon. Nor was he subject to the 15 percent limitation under section 667.5, subdivision (c)(7), which imposes the limitation on any felony punishable by death or imprisonment in state prison for life. Although Comi received a life sentence, it was because of his status as a recidivist, not because the felony was independently punishable by death or by life in prison. (People v. Thomas (1999) 21 Cal.4th 1122, 1130 [sections 2933.1 and 667.5(c)(7) limit a defendants presentence conduct credit to a maximum of 15 percent only when the defendants current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist].) Therefore, the trial court should not have imposed the 15 percent limitation on Comis worktime credits.

DISPOSITION

The matter is remanded to the trial court for a recalculation of custody credits. The clerk of the Superior Court is then directed to correct the abstract of judgment and to forward a corrected abstract to the Department of Corrections. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

^[1] All further undesignated statutory references are to the Penal Code.