P. v. Vega
Filed 8/8/13 P. v. Vega CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTURO COX VEGA,
Defendant and Appellant.
C071069
(Super. Ct. Nos.
CRF102728, CRF064317, CRF060997)
contest to assault by means likely to produce great bodily injury
(
ADDIN BA xc <@st> xl 27 s CGKMCX000001 xpl 1 l "Pen. Code, §
245, subd. (a)" Pen. Code, § 245, subd. (a); unless
otherwise stated, section references that follow are to the Penal Code) in case
No. 06-0997, and attempted second degree robbery
(
ADDIN BA xc <@osdv> xl 29 s CGKMCX000008 xpl 1 l "§§ 664,
211, 212.5, subd. (c)" §§ 664, 211, 212.5, subd. (c)) in case
No. 06-4317. Defendant was placed on
three years’ formal probation in both cases.
In February 2012, defendant pleaded
no contest to assault by means likely to produce great bodily injury ( ADDIN BA xc <@$st> xl 16 s
CGKMCX000001 xpl 1 § 245, subd. (a)) and admitted strike ( ADDIN BA xc <@osdv> xl 15 s
CGKMCX000009 xpl 1 l "§§ 667, 1170.12" §§ 667, 1170.12) and
street gang ( ADDIN BA xc <@osdv> xl 22 s
CGKMCX000010 xpl 1 l "§ 186.22, subd. (b)(1)" § 186.22, subd. (b)(1)) allegations in
case No. 10-2728. Sentencing defendant
in all three cases, the trial court imposed a stipulated term of eight years
eight months in state prison, and awarded the following presentence credit: 1053 days (703 actual and 350 conduct) in
case No. 10-2728, 841 days (421 actual and 420 conduct) in case No. 06-0997,
and 247 days (165 actual and 82 conduct) in case No. 06-4317.
On appeal, defendant contends he is
entitled to additional conduct credits for presentence custody occurring on and
after the effective date of the ADDIN
BA xc <@st> xl 40 s CGKMCX000002 l "Criminal Justice Realignment
Act of 2011" Criminal Justice Realignment Act of 2011
(Realignment Act). We affirm the
judgment.
Discussion
The facts underlying defendant’s
crimes need not be set forth because they are not relevant to our resolution of
this appeal.
Defendant contends he is entitled to
additional conduct credits for presentence custody served on or after the
October 1, 2011, effective date of the Realignment Act. We disagree.
Defendant’s claim addresses the
award of credits in case No. 10-2728, in which defendant was awarded 1053 days’
presentence credit (703 actual and 350 conduct) for time served from
May 30, 2010, until defendant was sentenced on May 1, 2012. Defendant committed the crime in case No.
10-2728 on May 30, 2010. Under the
law in effect at the time, a defendant with a current or prior strike
conviction was entitled to earn two days’ presentence conduct credit for every
four days of presentence custody. ADDIN
BA xc <@rec> xl 71 s CGKMCX000011 xpl 1 l "(Former § 4019,
as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)" (Former § 4019, as amended by Stats.
2009, 3d Ex. Sess., ch. 28, § 50.)
The Realignment Act amended the law,
entitling defendants to two days of conduct credits for every two days of
presentence custody. ( ADDIN BA xc <@osdv> xl 28 s
CGKMCX000012 xpl 1 l "§ 4019, subds. (b), (c), (f)" § 4019, subds. (b), (c), (f).) The award of credits is not reduced by a
defendant’s current or prior conviction for a serious felony. The provision contains a savings clause,
which states: “The changes to this
section enacted by the act that added this subdivision shall apply
prospectively and shall apply to prisoners who are confined to a county jail,
city jail, industrial farm, or road camp 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.†( ADDIN BA xc <@osdv> xl 17 s
CGKMCX000013 xpl 1 l "§ 4019, subd. (h)" § 4019, subd. (h).)
Defendant argues that we should
adopt the reasoning of ADDIN
BA xc <@cs> xl 53 s CGKMCX000004 xhfl Rep l "
Cal.App.4th 1126, review granted" People
v. Olague (2012) 205 Cal.App.4th 1126, review granted August 8,
2012, S203298, and apply the Realignment Act’s amendment to ADDIN
BA xc <@osdv> xl 12 s CGKMCX000014 l "section 4019" section 4019 to time served on or after
October 1, 2011. In ADDIN
BA xc <@$cs> xl 6 s CGKMCX000004 Olague,
the Court of Appeal found an ambiguity in ADDIN
BA xc <@osdv> xl 14 s CGKMCX000015 l "section 4019’s" section 4019’s savings clause, stating: “It is true that after declaring itself to
operate ‘prospectively,’ the October 2011 amendment declares that it will apply
‘to prisoners who are confined . . . for a crime committed on or
after October 1, 2011.’ ( ADDIN BA xc <@$osdv> xl 17 s
CGKMCX000013 xpl 1 § 4019, subd. (h).) Standing alone this would indeed suggest a
classification based upon the date of the offense. In the next sentence, however, the
Legislature declared, ‘Any days earned by a prisoner prior to October 1, 2011,
shall be calculated at the rate required by the prior law.’ ( ADDIN BA xc <@$osdv> xl 17 s
CGKMCX000013 xpl 1 § 4019, subd. (h).) Of course it would have been impossible to
earn days in presentence confinement on an offense which had not yet been
committed. This sentence is therefore
meaningless unless the liberalized credit scheme applies to crimes committed
before the stated date. While the
statute may thus seem somewhat self-contradictory, the contradiction is only
implied. The ambiguity is best resolved
by giving effect to both sentences and concluding that the liberalized scheme
applies both to prisoners confined for crimes committed after October 1,
2011, and to prisoners confined after that date for earlier crimes.†( ADDIN BA xc <@cs> xl 57 s
CGKMCX000005 xhfl Rep xpl 1 l "People
v. Olague,
at pp. 1131–1132.)
Since review was granted in ADDIN
BA xc <@$cs> xl 6 s CGKMCX000004 Olague,
the decision has no precedential value.
We also find the Court of Appeal’s reasoning unpersuasive. ADDIN
BA xc <@$cs> xl 6 s CGKMCX000004 Olague
was rejected in ADDIN BA xc <@cs> xl 43 s
CGKMCX000006 xhfl Rep l "People v.
Ellis
v. Ellis (2012) 207 Cal.App.4th 1546, in which the Court of Appeal
stated: “In our view, the Legislature’s
clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. [Citation.] The second sentence does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits. So
read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to ADDIN
BA xc <@$osdv> xl 12 s CGKMCX000014 section 4019, although part of the so-called
realignment legislation, applies based on the date a defendant’s crime is
committed, whereas ADDIN
BA xc <@osdv> xl 29 s CGKMCX000016 l "section 1170, subdivision
(h)" section 1170, subdivision (h), which sets
out the basic sentencing scheme under realignment, applies based on the date a
defendant is sentenced.†( ADDIN BA xc <@$id> xl 15 s ID
xhfl Rep xpl 1 Id. at
p. 1553; accord, People v. Rajanayagam
(2012) 211 Cal.App.4th 42.)
We agree with ADDIN
BA xc <@$cs> xl 5 s CGKMCX000006 Ellis
and accordingly reject defendant’s claim.
Disposition
The judgment is affirmed.
HULL ,
J.
We concur:
RAYE ,
P. J.
MAURO ,
J.
