Opinion
G043975
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIZ MARTINEZ, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08WF0663)
OPINION
Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed in part and reversed in part.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent. THE COURT:
Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.
Defendant Jose Luiz Martinez contends the trial court erred in failing to grant presentence conduct credits for time served in the county jail. At sentencing, the district attorney successfully argued that defendant was not entitled to any conduct credit, even for time spent in presentence custody, because defendant had been sentenced to an indeterminate term with a maximum of life in prison.
Recent decisional law establishes that Penal Code section 4019 grants presentence credits even to defendants who receive an indeterminate life sentence. (People v. Brewer (2011) 192 Cal.App.4th 457 (Brewer); see also People v. Philpot (2004) 122 Cal.App.4th 893, 907 (Philpot).)
All further statutory references are to the Penal Code unless otherwise specified.
The Attorney General concedes the error and joins in defendant's request to adjust his conduct credits. We shall modify the award of conduct credits, which is the only issue defendant raises in his opening brief.
I
PROCEDURAL HISTORY
Defendant performed multiple sexual assaults over a three month period upon the four-year old daughter of his live-in girlfriend. The trial court described the evidence as "overwhelming . . . ."
Following a jury trial, defendant was convicted of one count of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b), and a second count of lewd conduct with a child under 14 years of age (§ 288, subd. (a).) The trial court sentenced defendant to 15 years to life on the first count, but stayed the upper term sentence of eight years for the second count. (§ 654.)
The trial court credited defendant only with the actual number of days (799 days) he spent in custody in county jail before he was sentenced, but declined to award any additional presentence conduct credit under section 4019 because of the indeterminate sentence.
Defendant's opening brief raises the single appellate issue of his entitlement to presentence conduct credit based on Brewer, supra, 192 Cal.App.4th 457 and Philpot, supra, 122 Cal.App.4th 893. Defendant requests that we modify the judgment to grant him an additional 119 days for presentence conduct credit.
In its respondent's brief, the Attorney General agrees that "section 4019 applies to presentence conduct credits even where a defendant is sentenced to an indeterminate life term." The Attorney General further concurs with defendant's calculations regarding the number of additional days (119 days) to which defendant should be credited.
Because of the Attorney General's concessions, defendant has not filed an appellant's reply brief and has withdrawn his request for oral argument.
II
DISCUSSION - PRESENTENCE CONDUCT CREDITS
As both sides recognize, Brewer, supra, 192 Cal.App.4th 457, is dispositive on the issue of defendant's entitlement to presentence conduct credits under section 4019. In Brewer, the criminal defendant, like defendant here, was sentenced to an indeterminate life sentence for sexually abusing a child. While the appellate court affirmed his conviction, the court directed that the judgment be modified to give him presentence conduct credit as provided under section 4019.
Brewer concluded that section 4019 "is not subject to any express statutory exception making it inapplicable to those serving indeterminate life sentences, and which—as amended effective January 25, 2010—does contain express provisions limiting the amount of presentence conduct credits available to those convicted of specified crimes, including some that carry mandatory indeterminate life sentences." (Id. at p. 464.)
This court need not concern itself with the split in appellate authority regarding the retroactivity of recent amendments to section 4019 to increase the amount of presentence conduct credits. Given the nature of his crimes, defendant would not have been entitled to the benefit of these statutory amendments under any circumstances. (See discussion in Brewer, supra, 192 Cal.App.4th at p. 461, fn. 5.)
Neither party has raised the application of section 1237.1 on defendant's right to raise his entitlement to additional presentence conduct credits on appeal without first raising the matter before the trial court. Section 1237.1 precludes an appeal on the ground of "an error in the calculation of presentence custody credits" unless first presented to the trial court on a correction motion upon discovery of the error.
Section 1237.1 provides, "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court."
Section 1237.1 is designed to prevent misuse of the appellate process to correct clerical or mathematical errors in calculating presentence custody credits. (People v. Acosta (1996) 48 Cal.App.4th 411, 422.) Defendant's appeal raises a pure question of law, and is not predicated on a "miscalculation" of precustody sentence credits or a minor ministerial act. Judicial economy is served by granting relief which both sides recognize is due.
As we have indicated, defendant and the Attorney General agree that defendant should have received 119 days of good time credits. That is because section 2933.1 limits defendant's entitlement to presentence conduct credit to 15 percent of his actual days in custody for certain specified crimes, including section 288, subdivision (a), for which defendant was convicted in count two. Defendant is subject to the limitations imposed by section 2933.1 even though the trial court stayed execution of sentence for this qualifying offense. (In re Pope (2010) 50 Cal.4th 777, 780.)
III
DISPOSITION
We remand and direct the trial court to modify the judgment to credit defendant with 119 days of conduct credits pursuant to section 4019. The trial court shall forward an amended abstract of judgment reflecting the conduct credits to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.