P. v. Wallace
Filed 10/3/13 P. v. Wallace CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
TRAISEN RAY WALLACE,
Defendant and
Appellant.
H038930
(Santa Cruz
County
Super. Ct.
No. F11498)
Defendant
Traisen Ray Wallace was placed on probation after pleading guilty to
& Saf. Code, § 11351.5) and selling, transporting, or offering to sell
cocaine base (Health & Saf. Code, § 11352, subd. (a)). Thereafter, defendant violated probation and
the trial court sentenced him to three years in prison.
On appeal,
defendant contends, and the Attorney General concedes, that the trial court
erred by (1) failing to award an additional 180 days of actual
conduct credit to 20 percent. We agree
that the concessions are appropriate, and we will therefore modify the
judgment.
BACKGROUND
In June
2005, the District Attorney filed an information charging defendant with
possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1)
and selling, transporting, or offering to sell cocaine base (Health & Saf.
Code, § 11352, subd. (a); count 2). The
information further alleged that at the time the offenses were committed,
defendant was released from custody on bail or on his own recognizance (Pen.
Code, § 12022.1
name="_ftnref1" title="">
21, 2005, defendant pleaded guilty to both counts, and the
enhancements were stricken as to both counts.
The trial court suspended imposition of sentence and placed defendant on
probation for three years. As a
condition of probation, defendant was ordered to serve 365 days in county jail.
At the plea
hearing, the prosecutor stated on the record that defendant could serve part of
his 365-day jail sentence in the SAFE program, which was a six-month
residential treatment program. The trial
court agreed with the prosecutor’s statements.
Defendant
completed the SAFE program on January
17, 2006. Thereafter,
defendant requested a modification of his probation. The trial court granted defendant’s request
and deemed his 365-day custody sentence terminated as of January 17, 2006.
In June 2006, the trial court
revoked defendant’s probation and issued a bench warrant on the grounds that
defendant failed to stay in touch with his probation officer. In July 2012, defendant was arrested on a new
offense.
In October
2012, the trial court found defendant had violated probation, and it sentenced
him to three years in prison. When
defendant inquired whether he was entitled to custody credit for the time he
spent in the SAFE program, the court responded that he was not entitled to such
credit. The court awarded defendant only
49 days of actual custody credit for the time he spent in custody before the July 21, 2005 plea hearing plus 9
days of conduct credit, for a total of 58 days of credit. The court indicated it was limiting
defendant’s conduct credit to 20 percent because of a prior strike in Oregon.
DISCUSSION
Defendant contends, and the
Attorney General concedes, that (1) he was entitled to an additional 180 days
of actual custody credit for the time he spent in the SAFE program and (2) the
trial court erred in limiting his conduct credit to 20 percent. We find the concessions appropriate.
A. 180 Days of
Actual Credit
Section 2900.5 provides, in pertinent part:
“(a) In all felony and misdemeanor convictions, . . . when the defendant
has been in custody, including . . . any time spent in a jail, . . .
rehabilitation facility, . . . or similar residential institution, all days of
custody of the defendant . . . shall be credited upon his or her term of
imprisonment . . . .†Time spent in a
residential treatment program as a condition of probation qualifies for
presentence custody credit under section 2900.5, subdivision (a). (People v. Jeffrey (2004) 33 Cal.4th
312, 318; People v. Johnson (2002) 28 Cal.4th 1050, 1053; People v. Davenport (2007) 148 Cal.App.4th 240, 245.)
Defendant completed the SAFE
program, which was a 180-day residential treatment program. Furthermore, at the time of the plea hearing,
all parties understood that part of defendant’s 365-day jail sentence could be
served in the SAFE program. Accordingly,
defendant was entitled to the additional 180 days of actual custody credit, for
a total of 229 days of actual custody credit.
B. Limitation on Defendant’s Conduct Credit
The trial court believed that
defendant’s conduct credit should be limited to 20 percent because of a
prior strike in Oregon. However, there is nothing in the record
indicating a valid basis for this limitation.
Although
section 2933.1 requires that a trial court impose a limitation on the accrual
of presentence conduct credit, that section provides that conduct credit shall
be limited to 15 percent, not 20 percent, and the statute only applies when the
defendant is convicted of a “violent felon[y]†under the meaning of section
667.5. None of defendant’s offenses
involved violent felonies listed in section 667.5, subdivision (c), and thus,
section 2933.1 does not apply.
Therefore, because there was no
valid basis for the 20 percent credit limitation, defendant was entitled to
additional conduct credit under section 4019.
(See People v. Dieck (2009) 46 Cal.4th 934, 939.) The version of section 4019 in effect at the
time of defendant’s crime in 2005 provided that a defendant could earn conduct
credit at a rate of two days for every four-day period of actual custody. (Stats. 1982, ch. 1234, § 7.) As discussed, defendant should have been
awarded 229 days of actual custody credit.
Accordingly, defendant was entitled to 114 days of conduct credit.
The judgment is modified to
reflect that defendant is entitled to 343 days of credit (229 days of actual
custody credit and 114 days of conduct credit).
As modified, the judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2]
We calculate that 229 days of actual
custody credit divided by four, rounded down to the next whole number yields 57
days, which is then multiplied by two to yield 114 days of conduct credit.
