PEOPLE v. MOON








Filed 3/29/11





CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JAMES P. MOON, Defendant and Appellant.

C065216 (Super. Ct. No. 62066138)

APPEAL from a judgment of the Superior Court of Placer County, Larry D. Gaddis, Judge. Affirmed.

Riordan & Horgan, Dennis P. Riordan and Donald M. Horgan for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes, Janis Shank McLean, and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.



Defendant was convicted by a jury of second degree murder (Pen. Code, § 187, subd. (a)) stemming from a drunken driving incident in which a passenger in defendant's car was killed. (Unless otherwise designated, section references that follow are to the Penal Code.) The trial court suspended imposition of sentence and granted defendant formal probation for a period of 12 years, with four years in county jail. The court thereafter entered an order denying defendant conduct credits for his time in county jail, pursuant to section 2933.2.
Defendant appeals the order denying conduct credits, arguing section 2933.2 applies only to those who are sentenced to prison. We disagree and affirm the order.
Facts and Proceedings
Because defendant does not appeal the underlying judgment and sentence, the facts may be briefly stated. Defendant was drinking and smoking marijuana one evening and later drove through a residential area at speeds in excess of 100 miles per hour. He lost control of his vehicle and crashed. A passenger in the vehicle was killed. An hour after the incident, defendant's blood alcohol level was .19.
Defendant was charged with second degree murder and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), and was convicted as charged. The trial court thereafter suspended imposition of sentence and granted defendant formal probation for a period of 12 years, with four years in county jail. Defendant was awarded 164 days of credit for time served prior to the sentencing hearing. Defendant waived his right to appeal the judgment and sentence as well as any objection to serving more than one year in the country jail.
After defendant learned his release date had been recalculated to reflect that he would not be earning any conduct credits while in jail, his counsel wrote the court asking for clarification. The court scheduled a hearing and the parties briefed the issue. The court ultimately ruled that defendant is not entitled to conduct credits while in county jail.
Discussion
Defendant contends he is entitled to conduct credits under section 4019. At the time of the offense, section 4019 provided, among other things, that â€