Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 990582
SIMS, Acting P.J.A jury convicted defendant Raymond J. Santos, Jr., of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and one count of possessing a billy, a prohibited weapon (Pen. Code, § 12020, subd, (a)). The trial court also found true allegations defendant had a prior strike, and sentenced him to an aggregate prison term of 18 years.
On the assault conviction, the court sentenced defendant to the upper term of four years, doubled to eight years by virtue of his prior strike, plus two five-year enhancements for having two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)).
On appeal, defendant contends the trial court undercalculated the amount of pretrial custody credit to which he was entitled. The People concede the error. We agree that the court miscalculated his custody credit, modify the judgment, and affirm the judgment as modified.
Defendant first sought relief in the trial court, as required by Penal Code section 1237.1.
Defendants detained in a county jail or other equivalent specified facility prior to the imposition of sentence, may be eligible for presentence good behavior/worktime credits (collectively referred to as conduct credits) of up to two days for every four days of actual custody. (Pen. Code, § 4019.) For specified felons convicted of designated violent offenses, defined by statute, Penal Code section 2933.1, subdivision (c), limits the authorized award of presentence conduct credits to a maximum of 15 percent of a defendant’s actual period of presentence confinement. (See In re Reeves (2005) 35 Cal.4th 765, 768; People v. Cooper (2002) 27 Cal.4th 38, 40.)
Under Penal Code section 4019, presentence conduct credit is calculated “by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]” (People v. Fry (1993) 19 Cal.App.4th 1334, 1341 [24 Cal.Rptr.2d 43].)
But the limitation on credit of Penal Code “section 2933.1 applies only where the defendant’s current conviction is a violent felony listed in section 667.5.” (People v. Henson (1997) 57 Cal.App.4th 1380, 1389 [67 Cal.Rptr.2d 734], italics omitted.)
Penal Code section 667.5, subdivision (c), states: “For the purpose of this section, ‘violent felony’ means . . .” and sets forth 19 specific felonies and describes the circumstances under which certain of these felonies must be committed. Legislative history indicates that “‘the legislative intent in enacting subdivision (c) of Section 667.5 . . . was to identify these “violent felonies” and to single them out for special consideration in several aspects of the sentencing process.’” (People v. Henson, supra, 57 Cal.App.4th at p. 1386; Stats. 1980, ch. 132, § 1(b), p. 305.)
Penal Code section 667.5, subdivision (c), provides: “(c) For the purpose of this section, ‘violent felony’ shall mean any of the following:
Here, defendant contends that because his current offenses were not “violent” offenses within the meaning of Penal Code section 667.5, subdivision (c), the amount of presentence conduct credit to which he was entitled should have been calculated pursuant to Penal Code section 4019, rather than section 2933.1, which limited credit to 15 percent of actual time. Under section 4019, he would be entitled to 176 days of conduct credit, not the 52 days credited by the court.
The People agree with defendant that Penal Code section 4019 governs the calculation of presentence conduct credit in this case and concede that he is entitled to 176 days of conduct credit. (See People v. Thomas (1999) 21 Cal.4th 1122, 1130 [90 Cal.Rptr.2d 642, 988 P.2d 563].) We also agree and modify the judgment accordingly. A violation of Penal Code section 245, subdivision (a)(1), is not listed in section 667.5. (People v. Ruiz (1999) 69 Cal.App.4th 1085, 1089.) A violation of section 245, subdivision (a)(1), “will be treated as a violent felony when the defendant ‘inflict[ed] great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 or . . . use[d] a firearm which has been charged and proved as provided in Section 12022.5, 12022.53, or 12022.55.’ ([Penal Code] § 667.5, subd. (c)(8); see People v. Rodriguez (1998) 17 Cal.4th 253, 261 [70 Cal.Rptr.2d 334, 949 P.2d 31].” (Ruiz, supra, 69 Cal.App.4th at p. 1089.) Neither condition is present in the instant case.
DISPOSITION
The judgment is modified to award defendant credit for 352 days of actual custody and 176 days of presentence conduct credit for a total of 528 days. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: HULL , J., BUTZ , J.
Sentence on the conviction for illegally possessing a billy was stayed pursuant to Penal Code section 654.
“(1) Murder or voluntary manslaughter.
“(2) Mayhem.
“(3) Rape, as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.
“(4) Sodomy, as defined in subdivision (c) or (d) of Section 286.
“(5) Oral copulation, as defined in subdivision (c) or (d) of Section 288a.
“(6) Lewd or lascivious act, as defined in subdivision (a) or (b) of Section 288.
“(7) Any felony punishable by death or imprisonment in the state prison for life.
“(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
“(9) Any robbery.
“(10) Arson, in violation of subdivision (a) or (b) of Section 451.
“(11) Sexual penetration, as defined in subdivision (a) or (j) of Section 289.
“(12) Attempted murder.
“(13) A violation of Section 12308, 12309, or 12310.
“(14) Kidnapping.
“(15) Assault with the intent to commit a specified felony, in violation of Section 220.
“(16) Continuous sexual abuse of a child, in violation of Section 288.5.
“(17) Carjacking, as defined in subdivision (a) of Section 215.
“(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
“(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.
“(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.
“(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
“(22) Any violation of Section 12022.53.
“(23) A violation of subdivision (b) or (c) of Section 11418.
“The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person.”