P. v. Hatch
Filed 6/20/13
P. v. Hatch CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MELVIN JAMES HATCH,
Defendant and Appellant.
A137067
(Napa
County
Super. Ct.
No. CR157565)
Defendant
committed his crime in June 2011, and on July
18, 2012, pleaded no contest to second
degree commercial burglary (Pen. Code, § 459),
with a prior (§ 666). He also admitted
that he had served five prior prison terms (§ 667.5, subd. (b)), and that he
had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)). Subsequently, the trial
court granted defendant’s Romero motion
as to his two strikes, and sentenced defendant to prison for six years. (People
v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court granted defendant presentence
credits based on the version of section 4019 in effect when he committed his
crime.
On
appeal, defendant contends that he is entitled to additional presentence
conduct credits. He claims that the
trial court correctly calculated his conduct credits under the former version
of section 4019 for the period of June 2011 until September 30, 2011, but that it should have calculated his
conduct credits including and after October
1, 2011, under the current version of section 4019. We reject defendant’s argument but conclude
that the trial court’s calculation of presentence custody credit is incorrect,
and modify the judgment to increase his presentence custody credit from 251 to
255 days.
BACKGROUND
On August 2, 2011, an information
was filed charging defendant with second
degree commercial burglary (§ 459), and petty theft with a prior
(§ 666). The information also
alleged that defendant had served five prior prison terms (§ 667.5, subd. (b)),
and that he had suffered two prior strike convictions (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)).
Defendant, as
stated in the police report, took a basket of groceries from a grocery store
without paying for them on June 28, 2011. When apprehended a short time later, he could
not pay for the groceries.
On July 18, 2012, pursuant to a
pleaded no contest to the charged burglary and petty theft, and admitted
serving four prior prison terms and suffering two strike convictions. On November
6, 2012, the trial court denied probation. The court granted defendant’s
strikes.
The trial court
sentenced defendant to state prison
for a total term of six years. At the
hearing, the court stated it was awarding defendant a total of 251 days of
credit for his presentence custody, which included 171 days of actual time
served, and an additional 80 days of conduct credit. The abstract of judgment states that defendant
was awarded 256 days of credit, consisting of 171 actual days and 85 days of
conduct credit.
Defendant filed
a timely notice of appeal.
DISCUSSION
Section 4019 governs conduct credits.
Before January 25, 2010, subdivisions (b) and (c) of section 4019
provided that for “each six-day period in which a prisoner is confined in or
committed to†a local facility, one day is deducted from the period of confinement
for performing assigned labor and one day is deducted from the period of
confinement for satisfactorily complying with the rules and regulations of the
facility. (Stats. 1982, ch. 1234, § 7,
p. 4553.) Former subdivision (f) of
section 4019 provided, “[I]f all days are earned under this section, a term of six days will be deemed to have been
served for every four days spent
in actual custody.†(Stats. 1982, ch.
1234, § 7, p. 4554.)
Effective January 25, 2010, section 4019
was amended to provide that certain defendants could earn presentence credits at the rate of two days for every two days in custody, commonly referred
to as one-for-one credits. (Stats. 2009, 3rd Ex. Sess. 2009–2010, ch.
28, § 50.) Exempted from this amendment
were registered sex offenders and defendants committed for a serious felony or
who had prior serious or violent felony convictions. These defendants were subject to the
pre-January 25, 2010 formula for calculating presentence credits. (§ 4019, former subds. (b)(2) & (c)(2).)
This amendment remained in effect until September
28, 2010, when urgency legislation was adopted restoring the calculation of
custody credits to the pre-January 25, 2010 formula for crimes committed after
the effective date of the revision.
(Stats. 2010, ch. 426, § 2.)
Subsequently, in connection with other legislation relating to the
Criminal Justice Realignment Act, effective October 1, 2011, section 4019 was once again amended to increase
conduct credits and four days are deemed served for every two days in actual
custody. (§ 4019, subds. (b), (c), (f);
Stats. 2011, ch. 15, § 482.)
In the present
case, the trial court calculated defendant’s presentence credits based on the
version of section 4019 in effect on June
28, 2011, when defendant committed his crime. Since defendant had previously been convicted
of a serious felony, former section 4019 provided that he could earn six days
of credit for every four days served.
Defendant was in
presentence custody before and after October
1, 2011, when the current version of section 4019 became
operative. (See People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1550 (
Defendant contends that the trial court should have used the current
version of section 4019 to calculate his conduct credit for the time he spent
in presentence confinement on and after October
1, 2011, which he claims would have resulted in 294 presentence
credits.
Defendant’s argument that the court should have
used two different rates to calculate his conduct credit is based on his
interpretation of the language in subdivision (h) of section 4019. The current version of section 4019 provides as follows: “The changes to this section [regarding
two-for-two credits] enacted by
the act that added this subdivision shall apply prospectively and shall apply
to prisoners who are confined to a county jail . . . for a crime committed on
or after October 1, 2011. Any days
earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the
prior law.†(§ 4019, subd. (h),
fn. omitted.)
Defendant argues that the first sentence of
section 4019, subdivision (h) refers to when a crime is committed and the
second sentence refers to days earned by a prisoner. He claims that this distinction is supported
by the following language in People v.
Brown (2012) 54 Cal.4th 314:
“[P]risoners who served time before and after former section 4019 took
effect are not similarly situated . . . .†(Brown,
at p. 329.) He maintains that his
interpretation is consistent with Brown as
his construction would result in the amendment being applied prospectively.
Defendant does not cite or refer to the Fifth
District’s decision, Ellis, supra, 207
Cal.App.4th 1546, or the Fourth District’s decision, People v. Rajanayagam (2012) 211 Cal.App.4th 42 (
amended version of section 4019 “applies only to eligible prisoners whose
crimes were committed on or after†October 1, 2011. (Ellis,
at p. 1548; Rajanayagam, at p.
52.) The Rajanayagam court
determined that the “plain language†of the first sentence of section 4019,
subdivision (h) “leads unmistakably to the conclusion†that the October 2011
version of section 4019 does not apply to a defendant whose crime was committed
prior to October 1, 2011. (Rajanayagam,
at p. 51.) Further, the second
sentence of section 4019, subdivision (h) “cannot [be] read . . . to imply any
days earned by a defendant after October 1, 2011, shall be calculated at
the enhanced conduct credit rate for an offense committed before October 1,
2011, because that would render the first sentence superfluous.†(Rajanayagam, at p. 51.) Construing each sentence “ ‘ “to
produce a harmonious whole,†’ †the Rajanayagam court reasoned that
“[s]ubdivision (h)’s second sentence does not extend the enhanced conduct
credit provision to any other group. . . .
Instead, subdivision (h)’s second sentence attempts to clarify that
those defendants who committed an offense before October 1, 2011, are to earn
credit under the prior law. However
inartful the language of subdivision (h), we read the second sentence as
reaffirming that defendants who committed their crimes before October 1, 2011,
still have the opportunity to earn conduct credits, just under prior law. [Citation.]
To imply the enhanced conduct credit provision applies to defendants who
committed their crimes before the effective date but served time in local
custody after the effective date reads too much into the statute and ignores
the Legislature’s clear intent in subdivision (h)’s first sentence.†(Id. at
p. 52, fn. omitted.)
We agree with the reasoning of the
conclude that the trial court correctly applied the version of section 4019 in
effect at the time defendant committed his crime when calculating his
presentence credits.
Defendant also argues, in a footnote, that former
section 2933 applies because the trial court struck his two prior serious
and/or violent felonies pursuant to section 1385. Former section 2933 provided a more liberal
formula prior to October 1, 2011, and allowed one day’s credit for each day
served. This statute, however, was
declared inapplicable to certain classes of prisoners, including those who,
like defendant, had previously been convicted of a serious felony. (Former § 2933, subd. (d); Stats. 2010,
ch. 426, § 1.) “[S]ection 1385 does not
authorize a court to disregard the historical facts that disqualify a local
prisoner from earning the accelerated day-for-day conduct credits under former
section 4019.†(People v. Clancey (2013) 56 Cal.4th 562, 584-585.) “ ‘[W]hen a court has struck a prior
conviction allegation it has not “wipe[d] out†that conviction as though the
defendant had never suffered it; rather, the conviction remains a part of the
defendant’s personal history . . .’ and available for other sentencing
purposes.†(People v. Lara (2012) 54 Cal.4th 896, 906.) Accordingly, here, the trial court correctly
considered defendant’s strikes when calculating defendant’s presentence conduct
credits and, thus, properly declined to apply section 2933.
Finally, we consider whether the actual
calculation of the conduct credits was correct.
The People contend that we should amend the abstract of judgment because
it incorrectly states that the presentence credits are 256 days while the court
stated at the sentencing hearing that it was awarding defendant 251 days. The People argue that “[t]he oral
pronouncement of judgment controls over any discrepancy with the minutes or the
abstract of judgment.†(
859, 864.) The People point out that the
abstract of judgment also erroneously
reflects that these credits were awarded pursuant to section 2933, rather than
section 4019. Defendant does not respond
to the People’s argument regarding alleged clerical errors in the abstract of
judgment.
At the hearing, the court declared that defendant
had 164 actual days and 82 days of conduct credit. The court then noted that it appeared that
defendant was entitled to an additional seven days for time actually served and
simply stated that the actual days were 171 (164 plus 7) and that the conduct
credit was 80. It is unclear how the
court calculated the number of 80 and the People, in their brief in this court,
offer no explanation as to how this number was derived.
We agree with the
People that the general rule is that when there is a discrepancy between the
oral pronouncement rendering judgment, as reflected in the reporter’s
transcript, and the minute order or the abstract of judgment contained in the
clerk’s transcript, the oral pronouncement controls and it is presumed that the
difference is due to a clerical error in the abstract of judgment. (People
v. Scott (2012) 203 Cal.App.4th 1303, 1324.) It
is also the “ ‘general rule’ †that “ ‘a record that is in conflict will
be harmonized if possible.
[Citation.] If it cannot be
harmonized, whether one portion of the record should prevail as against
contrary statements in another portion of the record will depend on the circumstances
of each particular case.’
[Citation.]†(
186, 194, fn. 4.)
In the present case, the record establishes that
defendant spent 171 actual days in county jail and that the trial court
intended to calculate conduct credits based on the version of section 4019 that
applied when defendant committed his crime in June 2011. As already discussed, defendant had
previously been convicted of a serious felony and section 4019 in June
2011 provided for six days of credit for every four days served. We thus take the number of actual custody
days, 171, divide by four, and discard any remainder, which results in a
quotient of 42. (In re Marquez (2003) 30 Cal.4th 14, 25 [rounding up is not
permitted].) We multiply this quotient
by two for conduct credits in the amount of 84.
(See Id. at pp. 25-26.) The trial court awarded defendant 251 total
credits, and this calculation appears to be in error. Defendant is entitled to 4 additional days
(171 + 84 = 255).
We agree with the People that the abstract of
judgment should have indicated that the conduct credit was pursuant to section
2933 rather than section 4019.
We have the inherent power to correct clerical
errors in the record to make the record reflect the true facts. (People
v. Mitchell (2001) 26 Cal.4th 181, 185.)
We may correct these errors at any time and on our own motion or upon
the application of the parties. (
The judgment is
modified to reflect 255 days of presentence custody credit pursuant to section
4019, consisting of 171 days of actual credit and 84 days of conduct
credit. As modified, the judgment is
affirmed. The superior court is directed
to prepare an amended abstract of judgment to reflect this modification and to
forward a copy to the Department of
Corrections and Rehabilitation.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
to the Penal Code.
