P. v. Ramirez
Filed 6/4/13 P. v. Ramirez CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT CARLOS RAMIREZ,
Defendant and Appellant.
B234829
(Los Angeles
County
Super. Ct.
No. BA365954)
APPEAL from
a judgment of the Superior Court
of
County. Barbara R.
Johnson, Judge. Affirmed with
directions.
Susan L.
Wolk, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Steven D.
Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Appellant Robert Carlos Ramirez was charged with 32 felony
counts. He pled nolo contendere to two
counts of using a device to defraud a telephone company (Pen. Code, § 502.7,
subd. (a)(5))
title="">[1]
(counts 1 & 3) and to three counts of identity theft (§ 530.5, subd.
(a)) (counts 5, 6 & 7). He also admitted the allegation that he took,
damaged and destroyed property in excess of $65,000 within the meaning of
section 12022.6, subdivision (a)(1). The
trial court sentenced appellant to a total of three years in state prison,
consisting of the midterm of two years on count 1, plus one year pursuant to
section 12022.6, subdivision (a)(1). The
same three-year sentences were imposed on each of counts 3, 5, 6 and 7 and
ordered to be served consecutively, and the remaining counts were dismissed. The trial court awarded appellant 561 days of
presentence custody credit, consisting of 375 days of actual
credit.
Appellant’s
sole contention on appeal is that he
should have received 375 days of “one-for-one†conduct credit, for a total of
750 days of presentence credit. The
People agree, and so do we.
PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
Appellant committed his crimes
between January 6, 2006, and September 14, 2009. He was sentenced pursuant to his plea
agreement on May 26, 2011. At that time,
he had been in custody for 375 days, from May 16, 2010, through May 26, 2011,
and the trial court granted him 375 days of custody credit. During the sentencing hearing, the parties
disputed the calculation of conduct credit, and the trial court awarded 186
days of conduct credit.
DISCUSSION
Pursuant to
section 2900.5, a defendant is entitled to receive presentence credit for all
days of actual custody from the date of arrest through the date of
sentencing. In addition, pursuant to
section 4019, a defendant is entitled to receive presentence credit for
performing labor and complying with applicable rules and regulations, commonly
referred to as “conduct credit.†(
939.) A trial court awards presentence
credits at the time of sentencing. (See
Cal. Rules of Court, rules 4.310, 4.472.)
“Effective
January 25, 2010, the Legislature amended section 4019
. . . such that certain defendants earned one-for-one conduct
credits, which is two days of conduct credit for every two days in
custody.†(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Prior to this date, defendants were entitled
to one-for-two conduct credits, which is two days for every four days of actual
time served in presentence custody. (
Our Supreme Court has held that this amendment applied prospectively,
meaning that qualified prisoners in local custody first became eligible to earn
conduct credit at the increased rate beginning on the amendment’s operative
date. (People v. Brown (2012) 54 Cal.4th 314, 318.)
“Effective
September 28, 2010, the Legislature again amended section 4019
. . . [by restoring] the less generous one-for-two presentence
conduct credit calculation that had been in effect prior to the January 25,
2010 amendment. Thus, all local
prisoners could earn two days of conduct credit for every four days in
jail.†(People v. Rajanayagam, supra, 211 Cal.App.4th at
pp. 48–49.) The new decreased
credits were applicable only to defendants who committed crimes on or after the
statute’s effective date of September 28, 2010, as expressly stated in former
section 4019 by the addition of
subdivision (g). (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 76
(2009–2010 Reg. Sess.) as amended Aug. 20, 2010.) Subsequent amendments to section 4109 have
also expressly provided for prospective application to crimes committed after
each new effective date. (§ 4019, subd.
(g); People v. Ellis (2012) 207
Cal.App.4th 1546, 1549–1554.)
Because
appellant committed all of his crimes between January 6, 2006, and September
14, 2009, the version of section 4019 applicable here was the version that
became effective January 25, 2010, which provided one-for-one conduct
credits. Thus, appellant is entitled to
additional conduct credit.
The trial
court is directed to amend the abstract of judgment to reflect 375 days of
conduct credit, rather than 186 days, for total presentence credit of 750 days,
and to deliver a certified copy of the amended abstract to the
affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
FERNS
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code unless
otherwise indicated.
Because
the only issue presented is the calculation of custody credit, we do not set
forth the factual background, nor did the parties.
