Filed 10/17/17 P. v. Magana CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. EDUARDO MAGANA, Defendant and Appellant.

H042881 (Santa Clara County Super. Ct. No. E1007757)

Pursuant to a plea agreement, defendant Eduardo Magana pleaded no contest in 2010 to one count of second degree burglary (Pen. Code, §§ 459, 460, subd. (b))[1] and was sentenced to two years in state prison. In 2015, while still on parole for the 2010 offense, Magana filed a waiver and stipulation for resentencing under Proposition 47 (§ 1170.18). The trial court recalled his sentence, directed that the conviction be reduced to a misdemeanor and imposed a jail term of 180 days, deemed served. The trial court also imposed one year of parole supervision.

On appeal, Magana argues the trial court erred by failing to apply his excess custody credits to outstanding penal fines. The People concede the argument in large part.

We agree the concession is appropriate for the reasons discussed below and will direct the trial court to modify the judgment accordingly. As modified, we will affirm the judgment.

I. Factual and Procedural Background

As this appeal challenges Magana’s sentence, we need not recount the facts regarding his original offense.

After pleading no contest to one count of second degree burglary (§§ 459, 460, subd. (b)) pursuant to a plea agreement, Magana was originally sentenced on November 18, 2010, to two years in state prison, with total presentence credits of 176 days. Magana subsequently filed a waiver and stipulation for resentencing under Proposition 47 on August 27, 2015.

At Magana’s September 28, 2015 resentencing hearing, the trial court reduced his 2010 felony conviction to a misdemeanor, imposed a county jail term of 180 days, which was deemed served, and further imposed one year of parole supervision.

The trial court also ordered Magana to pay the following fines, fees and assessments: (1) a $30 court security fee (§ 1465.8); (2) a $30 criminal conviction assessment (Gov. Code, § 70373); (3) a $200 restitution fine (§ 1202.4); (4) a $200 parole supervision restitution fine, suspended under section 1202.45; (5) a $10 crime prevention fee with $30 penalty assessment (§ 1202.5); and (6) a criminal justice administration fee of $259.50 payable to the County of Santa Clara (Gov. Code, § 29550).

II. Discussion

Magana asserts that the trial court erred by not applying his excess custody credits to his outstanding, eligible fines.

The People concede that Magana was entitled to have his penal and restitution fines offset by his excess custody credits, calculated at a rate of not less than $30 per day. However, the People assert this would not include the nonpunitive assessments and fees, i.e., the $30 court security fee (§ 1465.8) and the $30 criminal conviction assessment (Gov. Code, § 70373). We agree with the People’s position in this matter.

At the time of the underlying offense and at the time of sentencing, section 2900.5, subdivision (a), provided for excess custody credit to be applied, “on a proportional basis” (Stats. 2014, ch. 612, § 5, p. 4165), to fines “at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence.” (Stats. 2013, ch. 59, § 7, p. 1431.) This court held, in People v. Morris (2015) 242 Cal.App.4th 94, 102-103, that a defendant was entitled to have excess custody credits applied to offset his base fines, including restitution fines, pursuant to this statute. The statute does not apply, however, to nonpunitive fees and assessments, such as the $30 court security fee imposed under section 1465.8 and the $30 criminal conviction assessment authorized by Government Code section 70373. (People v. Robinson (2012) 209 Cal.App.4th 401, 407.)

At the time of his resentencing, the trial court determined that Magana had 283 days of postsentence custody credits, and the People do not dispute this calculation. Since the trial court deemed Magana’s six-month jail sentence to have been served, it should have applied his excess custody credits of 283 days to the eligible fines at a rate of not less than $30 per day. (Former § 2900.5, subd. (a).) Multiplying $30 by 283 yields $8,490. After subtracting out the $30 court security fee and $30 criminal conviction assessment, the remaining balance of fines and fees imposed by the court equals $699.50. Since this is well under the amount of credit Magana is entitled to under former section 2900.5, subdivision (a), his obligations should be deemed satisfied in full.

III. Disposition

The judgment is ordered modified deeming the following fines and fees to have been satisfied in full by defendant’s excess days spent in custody pursuant to former Penal Code section 2900.5, subdivision (a): (1) the $200 restitution fine imposed under Penal Code section 1202.4; (2) the $200 parole supervision restitution fine, imposed but suspended under Penal Code section 1202.45; (3) the $10 crime prevention fee with $30 penalty assessment imposed under Penal Code section 1202.5; and (4) the criminal justice administration fee of $259.50 payable to the County of Santa Clara imposed under Government Code section 29550. As so modified, the judgment is affirmed. The clerk of the superior court is directed to modify the abstract of judgment to reflect this modification and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.

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