Filed 7/3/13 P. v. Harlan CA5
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CAROL WAYNE HARLAN,
Defendant and
Appellant.
F064877
(Super.
Ct. Nos. 1414349,
1231025, 1246735 & 1425708)
APPEAL from
a judgment of the Superior Court of
County. Ricardo Cordova, Judge.
Mark J.
Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Defendant challenges the total
amount of conduct credits he was awarded for time spent in county jail prior to
commencement of his prison sentence. We
find no error and affirm the trial court’s judgment.
On January
17, 2008, defendant pled guilty in case No. 1231025 to possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)) and
admitted three prior prison term enhancements (Pen. Code, § 667.5, subd.
(b)).
case No. 1246735 to possession of a dangerous weapon (§ 12020, subd.
(a)(1)) and possession of a controlled substance.
enhancement.
On July 1, 2008, defendant was
sentenced to a term of two years in case No. 1246735 for possession of a
dangerous weapon. In case Nos. 1246735
and 1231025, defendant was sentenced to two concurrent terms of two years on
the remaining drug counts. The court
imposed a term of one year for a prior prison term enhancement. In case No. 1246735, defendant was awarded 9
days of actual custody credits and 4 days of conduct credits. In case No. 1231025, defendant was awarded
159 days of actual custody credits and 78 days of conduct credits.
On March 4, 2010, defendant pled no
contest in case No. 1414349 to possession of a controlled substance and
admitted multiple prior prison term enhancements. On December 3, 2010, defendant pled no
contest in case No. 1425708 to possession of a controlled substance and
admitted multiple prior prison term enhancements. Defendant was sentenced on September 2, 2011,
to prison for two years for one narcotics
offense and to a consecutive term of one year for a prior prison term
enhancement. Defendant was sentenced to
a concurrent sentence of two years for the second narcotics offense. In case No. 1414349, the court awarded actual
custody credits of 73 days and conduct credits of 72 days. In case No. 1425708, the court awarded 75
days of actual custody credits and 75 days of conduct credits.
Pursuant to amendments to section
4019, defendant filed a motion on January 18, 2012, to correct the abstract of
judgment with regard to the credits awarded in case Nos. 1231025 and 1246735.
defendant’s motion without prejudice pending the California Supreme Court’s
decision in People v.
On appeal, defendant contends the
current version of section 4019, properly interpreted, entitles him to two days
of presentence conduct credits for every two-day period of confinement and to
interpret it otherwise violates equal
protection.
Defendant
acknowledges in his opening brief that Brown
had just been decided prior to the filing of his brief and the decision is
adverse to his contention. Defendant
notes that Brown was not yet final
when he filed his brief.
Defendant’s claim that he is
entitled to additional custody credits pursuant to legislative amendments to
section 4019 in January 2010 was rejected on both statutory construction and
equal protection grounds by the California Supreme Court in
The Brown decision is
dispositive of defendant’s contentions and we are bound by our high court’s
opinion. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450,
455.)
The
judgment is affirmed.
name="_ftn1" title="">* Before Levy, Acting P.J., Kane, J. and Poochigian, J.
name="_ftn2" title="">[1] All further statutory references are to the Penal Code unless otherwise
indicated.
