P. v. King

Filed 3/14/07 P. v. King CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. William Hollingsworth, Jr., Judge. Affirmed as modified.

James M. Crawford, under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.

_________________________

Defendant William Kahl King appeals his jury conviction of one count of assault with a firearm (Penal Code,  245, subd. (a)(2)) with a true finding that he personally used a firearm in the commission of the offense (Penal Code,  12022.5; 1192.7, subd. (c); and 667.5, subd. (c)). He contends that the trial court erred in failing to (1) instruct on the lesser included offense of brandishing a weapon (Penal Code,  417); (2) grant probation; and (3) grant two days of conduct credits (Penal Code,  4019).[1] We affirm the judgment, as modified, to grant defendant two additional days of conduct credits.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendants conviction arose out of a December 3, 2004 incident in a Cheesecake Factory parking lot where he was arguing with his girlfriend one evening. An employee of the Cheesecake Factory approached them and defendant waved a handgun at the man, telling him to stay away. A scuffle ensued, during which the gun went off. No one was hurt, but defendant and his girlfriend left the scene, and were later apprehended by the police. Each of the three participants in the altercation testified at trial.

A. Prosecution Case.

Lili Miura testified she met defendant through a business association. Both Miura and defendant were married, although defendant had separated from his spouse. Defendant lived at Portofino Marina on his boat.

On December 3, 2004, Miura met with defendant at about 6:30 p.m. at the Marina to attend a fund raising event at Torrance Memorial Hospital, and they drove together to the event in defendants car. They both had wine with dinner.

A few weeks earlier, defendant had showed her a gun he said belonged to his father. Miura asked defendant to return the gun to his father. At the Torrance Memorial parking lot, he showed her the gun again and said he was taking it back to his father. Defendant told her the gun was loaded, and put the gun in the backseat on the drivers side of the car.

After the event, about 9:30 p.m., while they were returning to the Marina, they got into an argument and defendant threatened to call Miuras husband. Miuras husband knew that she was at the charity event, but did not know that she was out with defendant. Defendant began to pressure her to leave her husband, and asked when she was going to do so. Miura protested that she was not ready, and needed more time. Miura was afraid that defendant was going to use her cell phone to check her call history to see if she had called her husband during the event, so she grabbed the phone and threw it into the Cheesecake Factory parking lot. Defendant found the phone, and Miura threw it away again. At this point, they were parked in the Cheesecake Factory parking lot, and Miura had gotten out of the car to look for the cell phone.

Vincent Pulizzi, a waiter who had just gotten off work at the Cheesecake Factory, approached Miura and defendant. He asked whats going on? Miura, who was embarrassed about the argument, responded that they were fine. Miura was afraid of him because Pulizzi was wearing a black beanie and had a moustache, and she thought he was a gangster and intended to rob them. Miura got back in the car. Pulizzi approached on the drivers side of the car, and she heard him say, what the fuck is going on? Defendant said, stay away, I have a gun. Defendant pulled the gun out and aimed it away from Pulizzi. Pulizzi kept approaching, and defendant pointed the gun at the sky and said, stay away, I have a gun. After defendant was tackled, she heard the gun go off. Miura denied that defendant had threatened her with the gun or hit her.

Pulizzi disarmed defendant. Defendant and Miura drove off, and defendant dropped her off at her car nearby because he did not want her to be implicated. She heard sirens, and believed defendant planned to go to the police to tell them what happened.

Pulizzi testified he was working as a waiter at the Cheesecake Factory. He was wearing his Cheesecake Factory uniform, tie, and apron, plus a small cap. At about 9:40 p.m. on December 3, 2004, he had just finished his shift and was on his way to his car to go home. He was wearing earphones and a walkman listening to music. He heard a woman yelling, and saw her about 40 feet away. She was yelling, youre crazy, youre crazy, youve ruined my life. He saw the man she was with trying to grab her arms and pull her back towards the car. She kept lifting her arms and circling out to get away from his grip. Pulizzi approached the couple because he believed she was in some kind of danger. He saw the woman lean into the car to grab a purse, and defendant shoved her.

Pulizzi was now about 15 feet away, and said to defendant, hey, you cant do that, dude. That is kidnapping. Defendant responded, this is between a man and his wife and that Pulizzi was brave but stupid. Defendant pulled out a gun and pointed it at Pulizzis face. Defendant walked towards Pulizzi, and Defendant, with his hand open, shoved Pulizzi in the face twice. Pulizzi thought defendant was going to shoot him, so Pulizzi grabbed for the gun barrel, and pulled it down. Pulizzi knocked defendant to the ground, and they struggled for the gun. Defendant had a grip on the guns trigger, and the gun went off twice.

Defendant and Miura got back into defendants car, and crashed through the parking lot gates to exit. Pulizzi got the cars license plate number.

Officer Stephen Sprengel of the Redondo Beach police was on patrol on December 3, 2004, at approximately 9:49 p.m. when he heard a call of shots fired in the area of the Cheesecake Factory with a description of a vehicle and a license plate number. He saw a vehicle fitting the description, a black 2002 Chrysler 300, going southbound on Harbor Drive. Officer Sprengel followed the vehicle for approximately four to five blocks, before he stopped the vehicle. He ordered defendant out of the vehicle and detained him. Defendant smelled of alcohol, had bloodshot, watery eyes, and his face was flushed. Back at the station, Officer Sprengel administered a breath test to defendant. Defendants blood alcohol registered .09 percent.

A ballistics examination done on defendants gun revealed that the cylinder of the revolver contained three loaded rounds, two expended shell casings, and one open position in the cylinder.

B. Defense Case.

Dr. Kahle King, defendants father, testified he lent his gun to defendant in 2004 because defendant wanted to go target shooting at the Highway Patrol target range.

Defendant testified that he is a regional sales manager with a Zurich-based company called Muller Martini, and he has never been arrested before. His relationship with Miura started as a business relationship, but after several years they became romantically involved.

At the charity dinner, defendant and Miura had wine to drink. Defendant put the gun in his car because he wanted to do some target shooting, and also because there were transients near where he docked his boat. Two to three weeks before the charity dinner, he loaded the gun because it was not useful as protection unloaded. Prior to the shooting in parking lot, he had never fired the gun before. The evening of the charity event, defendant got the gun out of the trunk of his car and showed it to Miura. He told her it was loaded, and opened the cylinder to show her the bullets.

While defendant and Miura drove back from the dinner, they discussed their relationship. Defendant asked Miura for her phone, but she threw it out the window. They drove into the parking lot to retrieve the phone, and after defendant found the phone and gave it back to Miura, she threw it over the fence again.

It was dark in the parking lot and defendant saw Pulizzi approaching them. Pulizzi had a dark beanie pulled down to his eyebrows. He heard Miura say, we are fine, thank you. Miura seemed afraid, and repeated that they were okay. Pulizzi approached the car and said, what the fuck are you doing here? He seemed aggressive, and defendant was concerned for their safety because Pulizzi looked like a gang member, although defendant admitted Pulizzi did not have any tattoos, he did not make a demand for money, he was not carrying a weapon, and he did not touch Miura. Defendant opened the door and Miura got into the car, and defendant told Pulizzi to get away. Pulizzi said, fuck you, buddy, and defendant, believing he was about to be assaulted, retrieved the handgun from the holster and raised the gun up in the air, saying I have a gun, get away. Defendant denied hitting, grabbing or slapping Miura.

Defendant denied aiming the gun at Pulizzi, and contended he pointed it straight up in the air. Defendant moved around the car to the drivers side. Pulizzi was watching defendant, and while defendant turned to look at Miura, Pulizzi grabbed the gun and knocked defendant down. Defendant was holding the gun and his hand was on the trigger. Pulizzi had him in a choke hold, and told defendant he had a knife. The gun went off although defendant did not intend to fire it.

Defendant and Miura got in the car and drove off, but to exit the parking lot, they had to drive around the gate. Defendant drove Miura back to the marina and then decided he was going to the police. Defendant did not want Miura to be involved. Using his GPS system, defendant headed for the police station, but before he drove very far, he was pulled over.

C. Verdict and Sentencing.

The jury found defendant guilty of assault with a firearm and found true the allegation defendant personally used a firearm. The trial court denied probation and sentenced defendant to a term of five years, consisting of the low base term of two years on the assault charge, plus three years for the firearm enhancement.

DISCUSSION

I. THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT ON BRANDISHING A WEAPON.

Defendant contends the trial court prejudicially erred in failing to grant his request to give an instruction on the offense of brandishing a firearm, which he contends is a lesser included offense of the crime of assault with a deadly weapon. He argues that because he pointed the gun at Pulizzi in a rude, angry, or threatening manner, the offense of brandishing was necessarily committed; moreover, he asserts that to commit an assault with a firearm, the weapon must necessarily be brandished. We disagree.

As a general rule, an uncharged crime is included in a greater charged offense if either (1) the greater offense cannot be committed without committing the lesser offense, or (2) the accusatory pleading encompasses all of the elements of the lesser offense. (People v. Wolcott (1983) 34 Cal.3d 92, 98.) In determining whether an offense is a lesser included, the evidence adduced at trial is not considered, because [t]o constitute a lesser and necessarily included offense, it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. (People v. Steele (2000) 83 Cal.App.4th 212, 218 (Steele).)

When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecutions intent to prove all the events of any lesser necessarily included offense. Hence, the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein. . . . (People v. Birks (1998) 19 Cal.4th 108, 118.) The duty to instruct on a lesser included offense arises where evidence raises a question as to whether all of the elements of the charged offense were present, but to invoke the duty there must be substantial evidence supporting the defendants guilt of only the lesser included offense. (Id. at pp. 117-118; People v. Barton (1995) 12 Cal.4th 186, 194-195.) The rule embodies the principle that the prosecution has no legitimate interest in obtaining a conviction for a greater offense than is supported by the facts, nor does the defendant have a right to acquittal when evidence supports a lesser included offense. (Barton, supra, 12 Cal.4th at p. 195; People v. Birks, supra, 19 Cal.4th at p. 119 [rule equally burdens defense and prosecution].) However, there is no duty to instruct on lesser related offenses. (Id. pp. 116, 136.)

Uniform authority that has directly considered the issue holds that brandishing is not a lesser included of assault with a deadly weapon.[2] (Steele, supra, 83 Cal.App.4th at p. 218.) The reason of course, is that it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victims back. (Id. at p. 218; see also People v. Escarcega (1974) 43 Cal.App.3d 391, 398 (Escarcega).) Rather, at most, brandishing is a lesser related offense. (Steele, supra, 83 Cal.App.4th at p. 218.)

Defendants argument that brandishing is a lesser included owes its genesis to language in People v. Wilson (1967) 66 Cal.2d 749 (Wilson), where the court reversed the defendants conviction for assault with a deadly weapon for failure to instruct pursuant to section 417. In Wilson, the defendant entered his estranged wifes apartment, killed his wife and another man in the apartment with her, and assaulted with his firearm the other two men in the apartment. (Id. at pp. 753-756.) The court noted that [d]efendant did not shoot or strike [the victim]; had the jury been instructed on section 417 the evidence would have justified the conclusion that defendant committed a violation of that section rather than the assault found. (Id. at p. 764.) Subsequently, the Supreme Court in People v. Coffey (1967) 67 Cal.2d 204 (Coffey), stated in a footnote that [t]he jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in [section 217, assault with intent to commit murder, and section 245, assault with a deadly weapon]. (Id. at p. 222, fn. 21.)

In Escarcega, supra, 43 Cal.App.3d at pp. 399-400, the court rejected the contention that Wilsonand Coffey stood for the proposition that brandishing was a lesser included offense of assault with a deadly weapon. Escarcega pointed out that Wilsondid not discuss or consider the basic rationales underlying lesser included offenses, nor did Wilsonhold that the elements of section 417 were necessarily included in section 245. Demonstrably, according to long-established principles, section 417 is not such a necessarily included offense. And it is significant that the court showed no purpose to overrule or modify those principles. Further, if the purpose was to hold the forbidden conduct of section 417 to be necessarily included in an assault with a deadly weapon charge, we may reasonably conclude that the court would have contemporaneously disapproved the many contrary Court of Appeal decisions which were then extant. (Escarcega, supra, 43 Cal.App.3d at p. 399.) On the other hand, since Wilson the Supreme Court itself had consistently affirmed the principle that a lesser included offense is one which is necessarily committed if the charged crime is committed. (Id. at pp. 399-400.) Escarcega similarly dispensed with the language in Coffey, supra, 67 Cal.2d 204, finding it to be dictum because the quoted statement of the court was not responsive to any issue raised, and was unnecessary to the decision of that case. (Escarcega, supra, at p. 400.)

In People v. Steele, supra, 83 Cal.App.4th 212, the court revisited the problematic language of Wilson and again rejected the notion that it consisted of a holding that bound lower courts pursuant to the principles of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. After pointing out that numerous cases hold that brandishing is not a lesser included of assault with a deadly weapon, Steele observed that in Wilson, the Supreme Court failed to follow the rule that whether an offense is a lesser included is made from the language of the statute or information, not from the evidence at trial. (Steele, supra, 83 Cal.App.4th at p. 221.) Furthermore, Steele conducted a close analysis of the Wilson decision, similar to the discussion in Escarcega, to demonstrate why the language in Wilson did not constitute binding precedent to be followed by appellate courts: Wilson did not directly state brandishing was a lesser included of assault with a deadly weapon; the court did not discuss the rationale of lesser included offenses; the court did not expressly overrule prior precedent holding brandishing was not a lesser included offense; the Supreme Court had consistently reaffirmed the principles underlying lesser included offenses; and Wilson is not supported by any subsequent cases. (Steele, supra, 83 Cal.App.3d at p. 220.)

Finally, we find no error here in failing to instruct on brandishing because under the second prong of the analysis, the accusatory pleading here does not encompass the offense of brandishing.[3] The information alleged that the crime of ASSAULT WITH A FIREARM, in violation of PENAL CODE SECTION 245(a)(2), a Felony, was committed by WILLIAM KAHL KING, who did willfully and unlawfully commit an assault on VINCENT PULIZZI with a firearm. The information does not allege that the firearm was used in a rude, angry or threatening manner, or that the weapon was used in a fight or quarrel.

II. THE TRIAL COURT DID NOT ERR IN REFUSING TO GRANT PROBATION.

A. Factual Background.

The prosecutions sentencing memorandum argued that pursuant to section 1203, subdivision (e)(2), because he used a deadly weapon in the commission of the offense, defendant was presumptively ineligible for probation, and that no exceptional circumstances existed justifying a grant of probation.

Defendant argued that he had no prior criminal record, and but for the unusual confluence of events, the crime would not have been committed. He contended that no one was injured, there was no monetary loss, and the commission of the crime showed no sophistication. Further, defendant was willing to comply with the terms of probation, was not a danger to others, and had expressed his remorse. On the other hand, if imprisoned, defendant would lose his livelihood and means of support.

The probation report recommended that defendant be given a suspended sentence and three years of probation with anger management. The report noted that defendant had bachelors and masters degrees, stable employment, and would benefit from supervision in the community.

At the sentencing hearing, the court indicated it had read the sentencing memoranda and the probation report. The prosecution contended the circumstances were not sufficiently unusual in this case to warrant probation. Defendant had retrieved the loaded weapon from his trunk and driven around with it in the passenger compartment all evening; defendant was angry with Miura and jealous because she would not leave her husband; defendant knew Miura was afraid of guns, but got the weapon out anyway in order to scare her; defendant was intoxicated and illegally carrying a firearm in a vehicle; defendant was yelling at Miura loud enough for Pulizzi to hear it through his headphones; and Pulizzi saw defendant shove Miura. Furthermore, defendant pointed the gun at Pulizzi and when Pulizzi grabbed at the gun, defendant deliberately fired it twice in a crowded parking lot.

Defendant made a statement, pointing out that he had no prior record and had been a productive citizen prior to the incident. Furthermore, his father and his son depended upon him to take care of them. Defendant requested a grant of probation and a diagnostic study concerning his suitability for probation.

The trial court concluded it could not find an unusual circumstance, and denied probation.

B. Discussion.

Defendant contends that the trial court abused its discretion in refusing to grant probation because it failed to adequately weigh his lack of a prior record and the unusual circumstances of the case making it unlikely to recur in making its determination. We find no abuse of discretion.

A trial court has broad discretion to determine whether a defendant is suitable for probation (People v. Welch (1993) 5 Cal.4th 228, 233), and a defendant bears a heavy burden when attempting to show that the court has abused that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) A court commits an abuse of discretion by denying probation when the courts determination is arbitrary, capricious, or beyond the bounds of reason. (See People v. Warner (1978) 20 Cal.3d 678, 683.) Moreover, a single aggravating factor may support the denial of probation (People v. Robinson (1992) 11 Cal.App.4th 609, 615), and the court is presumed to have considered relevant criteria in the California Rules of Court pertaining to the grant or denial of probation absent a record affirmatively reflecting otherwise. (Cal. Rules of Court, rule 4.409.)

Pursuant to section 1203, subdivision (e)(3), defendant was statutorily prohibited from probation because he used a deadly weapon in the commission of the crime, unless the case was an unusual one where the interests of justice would best be served if he were granted probation. In such circumstances, California Rules of Court, rule 4.413(b), requires the court (1) to apply the criteria in rule 4.413(c) to evaluate whether the statutory limitation on probation had been overcome and, if so, (2) to apply the criteria in rule 4.414 to decide whether to grant probation.[4] (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.)

Two recent cases analyzing the factors of Rule 4.413 illustrate these principles. In People v. Superior Court (Du), supra, 5 Cal.App.4th 822, the defendant was convicted of voluntary manslaughter and sentenced to 10 years in prison; the sentence was suspended and she was placed on probation. (Id. at p. 829.) The facts established the defendant, a storekeeper, shot a patron she believed was shoplifting. Defendant had never fired the gun before, which had previously been stolen from the store and returned to the defendant after having been altered to have a hair-trigger. The circumstances of the shooting indicated the defendant scuffled with the victim, who hit her, and then reached for a gun and shot the victim in the back of the head. (Id. at p. 826-827, 834.) In finding unusual circumstances, the trial court noted that section 1203 was aimed at criminals who arm themselves for the purpose of committing a crime, and not at shopkeepers who arm themselves for protection; the defendant had no record of crimes of violence; and the crime occurred under circumstances of great provocation, coercion, and duress. (Id. at p. 832.)

Du upheld the trial courts determinations. The circumstances of a shopkeeper lawfully possessing a weapon was sufficiently distinct from circumstances typically present in other gun use cases. The facts indicated the shooting took place under considerable provocation and duress, which constituted facts not amounting to a defense, but which reduced the defendants culpability. (People v. Superior Court (Du) at pp. 832-833.) Furthermore, the court noted it did not believe the crime would have been committed but for the altered weapon, as a .38 is one of the safest guns in the world, and a woman the defendants size would have had to exert considerable and conscious strength to pull the trigger. (Id. at p. 834.)

On the other hand, in People v. Superior Court (Dorsey) 50 Cal.App.4th 1216, the defendant, a sheriff, was convicted of embezzling funds earmarked for undercover drug operations and presumptively ineligible for probation pursuant to section 1203, subdivision (e)(7). The trial court granted probation after finding the case presented unusual circumstances due to the fact the whole fabric of Defendants life conflicts with the crimes here involved. . . . The Court agrees with and adopts the Defendants statement in mitigation as to the unusual nature of the case, and that the best interests of justice are served by probation. (Id. at p. 1222.) However, Dorsey reversed because itfound none of the factors listed in Rule 413 were present. The crimes were not less serious than those of a similar type; on the contrary, the crimes were very serious. Defendant was the sheriff, an official entrusted with upholding the law; the funds taken were those entrusted to him were to fight drugs, a matter of public concern; and the embezzlement took place over a considerable period of time. (Id. at p. 1226.) There was no evidence the defendant acted out of provocation or duress, nor was there evidence of a treatable mental condition. Finally, the sheriffs long career in law enforcement could not be a factor in mitigation; rather, it only made the offenses worse. (Id. at pp. 1226-1227.)

Here, the only factor in mitigation was the defendants spotless record prior to the offense. On the other hand, the offense itself was no less serious than similar assaults with a deadly weapon. The circumstances show defendant likely brought the gun along and put it into the passenger compartment of the car in order to threaten and intimidate Miura, who was not acquiescing to his demands that she leave her husband. Pulizzi heard defendant arguing loudly with her, and saw him shove her into the car. When Pulizzi attempted to intervene in what he perceived to be harmful conduct towards Miura, he was faced with a gun. As Pulizzi tried to wrestle the gun away from defendant, defendant discharged the weapon twice in a restaurant parking lot, and then fled the scene by barging through a closed gate. Pulizzis conduct in attempting to assist Miura did not constitute provocation or duress, nor was there evidence that defendant suffered from mental problems. Given these facts, the courts actions in denying probation were not arbitrary or capricious, but were rather grounded in a consideration of the facts.

III. DEFENDANT IS ENTITLED TO TWO DAYS OF CUSTODY CREDITS PURSUANT TO PENAL CODE SECTION 4019.

Defendant argues that because he served four days of actual custody prior to sentencing, he is entitled to two days of conduct credits pursuant to section 4019.[5] He contends that under section 4019, a person is eligible for a one-day credit for work and a one-day credit for complying with regulations for every four days served in custody; as a result, for every four days spent in actual custody, a term of six days is deemed served. (See People v. Culp (2002) 100 Cal.App.4th 1278, 1282-1283.) He contends, contrary to respondents assertion that a minimum of six days of presentence custody is required for credits, any requirement in the statute of six days of confinement refers to his ultimate prison term, not his presentence custody. ( 4019, subd. (e).)

A. Standard of Review and Principles of Statutory Construction.

Issues of statutory interpretation are reviewed de novo on appeal where there are no disputed factual issues. (Giles v. Horn (2002) 100 Cal.App.4th 206, 219-220.) The primary object of statutory interpretation is to ascertain the legislatures intent. (Nolan v. City of Anaheim(2004) 33 Cal.4th 335, 340.) In determining legislative intent, we start with the words of the statute, giving them their usual and ordinary meaning. When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. (Ibid.)

According to the rules of statutory construction, we do not examine statutory language in isolation. Instead, we examine statutory language in the context of the statutory framework as a whole in order to determine the scope and purpose of a particular statute and harmonize it with the various parts of the statutory scheme. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) Furthermore, we must select a construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.)

B. Section 4019 Provides for Two Days of Custody Credits for Every Four Days Served.

The language of section 4019 provides in relevant part that for each six-day period in which a prisoner is confined or committed, one day shall be deducted for satisfactory performance of work, and one day shall be deducted for good conduct. ( 4019, subds. (b), (c).)[6] However, section 4019 also provides that [n]o deduction shall be made under this section unless the person is committed for a period of six days or longer. ( 4019, subd. (e).) Defendant argues that his four days actual custody, plus his two days of conduct credits, satisfies the requirement of subdivision (e). Respondent points to the statutes history, and contends defendants pre-custody time must be at least six days.

We conclude defendant has the better argument, and that respondents argument is contrary to established law. Cases consistently interpret section 4019 as requiring four days of presentence custody before custody credits are awarded. (See, e.g., People v. Jacobs (6 Cal.App.4th 101, 103; People v. King (1992) 3 Cal.App.4th 882, 886; People v. Smith (1989) 211 Cal.App.3d 523, 527; People v. Bobb (1989) 207 Cal.App.3d 88, 97-98.) The Legislature apparently determined the appropriate ratio for awarding each type of compliant behavior is a reduction of sentence by one day for four days of appropriate behavior. (King, supra, 3 Cal.App.4th at p. 886.) Credits are given in increments of four days. No credit is awarded for anything less. (People v. Smith, supra, 211 Cal.App.3d at p. 527.)

For example, in People v. Bobb, supra, 207 Cal.App.3d 88, the defendant served three days in custody prior to trial. The court denied him any custody credits because four days of actual custody were required before a defendant could be deemed to have served the six days the statute required. (Id. at p. 97.) The court explained, Penal Code section 4019 specifies how prisoners may obtain certain credits. Subdivisions (b) and (c) of that section provide: for each six-day period in which a prisoner is confined in or committed to a specified facility one day shall be deducted from his period of confinement for performing labors, and one day shall be deducted for compliance with the rules and regulations of the facility. Subdivision (f) of that section provides, if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody. (Ibid.)

Under the statute, courts apply a mathematical formula to determine presentence custody credits. For time served in custody, the total number of days is divided by four, any remainder is discarded, and the result is multiplied by two. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Thus, consistent with the legislative intent set forth in subsection (f), a defendant will receive credit for six days of custody for each four actually served. ( 4019, subd. (f).)

DISPOSITION

The judgment is modified to give defendant an additional two days of custody credit, for a total of six days. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy to the Department of Corrections. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. WOODS, J.

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[1] All statutory references herein, unless otherwise noted, are to the Penal Code.

[2] The offense of brandishing a weapon is defined: Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days. ( 417, subd. (a)(1).)

The offense of assault with deadly weapon is defined: Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. ( 245, subd. (a)(1).)

[3] The analysis of Steele only addresses the elements prong of the lesser-included analysis. (See People v. Wolcott, supra, 34 Cal.3d at p. 98.)

[4] Rule 4.413, subdivision (b) provides that: (b) [Probation in unusual cases] If the defendant comes under a statutory provision prohibiting probation except in unusual cases where the interests of justice would best be served, or a substantially equivalent provision, the court should apply the criteria in subdivision (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

Rule 4.413, subdivision (c) provides that: (c) [Facts showing unusual case]  The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [] (1) Facts relating to basis for limitation on probation. A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: []  (i) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence. []  (ii) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. []  (2) Facts limiting defendants culpability. []  A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: []  (i) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; []  (ii) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and []  (iii) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

[5] After sentencing, defendant filed an ex parte application seeking two days of conduct credits under based upon his four days of confinement prior to sentencing. The trial court denied his application, finding that [d]efendant was in custody for four days. Penal Code section 4019 allows two days credit for each six day period. Mr. King was only in custody for four days and is not entitled to any additional time credits.

[6] Section 4019 provides in relevant part as follows: . . . (b) Subject to the provisions of subdivision (d), for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. []  (c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. . . . []  (e) No deduction may be made under this section unless the person is committed for a period of six days or longer. []  (f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.