Opinion
C043105.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE GUZMAN NAVARRO, Defendant and Appellant.
Defendant Enrique Guzman Navarro entered a no contest plea to discharging a firearm at an inhabited dwelling (Pen. Code, § 246; undesignated section references are to this code) "intentionally and personally" within the meaning of section 969f, which makes the offense a serious felony under section 1192.7, subdivision (c), and admitted a criminal street gang enhancement (§ 186.22, subd. (b)(4)(B)) in exchange for dismissal of a gun enhancement (§ 12022.53, subd. (d)). Additional gun enhancements (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c)) were dismissed on the prosecutions motion.
Section 969f, subdivision (a), provides that the facts constituting a serious felony, as defined in section 1192.7, subdivision (c), shall be charged in the accusatory pleading but shall not be referred to as a serious felony. The latter section, under subdivision (c)(23), lists "any felony in which the defendant personally used a dangerous or deadly weapon . . . ."
Sentenced to state prison, defendant appeals, contending the trial court erroneously determined that conduct credit was limited to 15 percent pursuant to section 2933.1. It provides that any person "convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit . . . ."
Section 29331.1 provides, in relevant part, as follows: "(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
We agree that section 667.5 does not list section 246 as a qualifying offense when enhanced by section 186.22 and will modify the judgment to provide for conduct credit pursuant to section 4019.
Discussion
We will forego a recitation of the facts underlying the offense which are not relevant to the issue raised on appeal. In preparation for sentencing, the probation officer advised that defendant had 102 days of actual custody and recommended that conduct credit of 15 days be awarded pursuant to section 2933.1.
At the sentencing hearing, defense counsel objected to the calculation of credit at 15 percent, arguing that section 246 was not listed under section 667.5 nor was it a felony punishable by life imprisonment because the enhancement is not considered for purposes of section 2933.1, citing People v. Thomas (1999) 21 Cal.4th 1122.
The prosecutor responded that section 667.5, subdivision (7), includes any felony punishable in prison for life and that subdivision (b)(4)(B) of the criminal gang enhancement provision of section 186.22 provides that a conviction for violation of section 246, committed for the benefit of a criminal street gang, shall be punished with life imprisonment. (See also § 186.22, subd. (e)(5).) The prosecutor further argued that "when the defendant entered his plea the complaint was amended that he personally and intentionally committed the 246, the shooting[,] [s]o he did personally fire a gun within the meaning of [section] 667.5[, subdivision] (c) making it a violent felony . . . ."
Defense counsel noted that section 667.5, subdivision (c)(8) requires that the firearm use be charged and proved under section 12022.5 or 12022.55, not section 969f, which in turn refers to section 1192.7. Defense counsel also noted that the Legislature had not added section 186.22, subdivision (b)(4)(B) to the section 667.5, subdivision (c) list although the Legislature had done so for other crimes enhanced by section 186.22, that is, extortion (§§ 518, 667.5, subd. (c)(19)) and threats to victims or witnesses (§§ 136.1, 667.5, subd. (c)(20)). Without comment on the parties arguments, the court awarded conduct credit pursuant to section 2933.1.
Section 667.5 provides, in relevant part, as follows: "(c) For the purpose of this section, `violent felony shall mean any of the following: [¶] . . . [¶] (7) Any felony punishable by death or imprisonment in the state prison for life. [¶] (8) . . . [A]ny felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5 or 12022.55. [¶] . . . [¶] (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."
Section 186.22, subdivision (b), provides, in relevant part, as follows: "(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraphs (B) or (C) of this paragraph. [¶] (B) Imprisonment in the state prison for 15 years, if the felony is . . . a felony violation of Section 246; . . . . [¶] (C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1."
Defendant renews his arguments on appeal. The Attorney General does not pursue the argument made by the prosecutor that the dismissed gun enhancements provide a basis for application of section 2933.1, but argues the 15-to-life sentence constitutes a basis.
"We begin by examining the words of the respective statutes; if the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs. [Citations.] If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such situations, we strive to select the construction that comports most closely with the Legislatures apparent intent, with a view to promoting rather than defeating the statutes general purposes. [Citation.] We will avoid any interpretation that would lead to absurd consequences. [Citation.]" (People v. Walker (2002) 29 Cal.4th 577, 581.)
Section 4019 provides for two days of conduct credit for every four days in actual custody. (People v. Henson (1997) 57 Cal.App.4th 1380, 1384.) It generally applies when section 2933.1 does not apply. Section 2933.1, subdivisions (a) and (c), limit conduct credit to 15 percent of the actual days in custody for "any person who is convicted of a felony offense listed in subdivision (c) of section 667.5 . . . ." (§ 2933.1, Henson, supra, 57 Cal.App.4th at p. 1385.)
Subdivision (c) of section 667.5 sets forth a list of offenses deemed "violent" felonies. Section 246 is not specifically listed. However, subdivision (c)(7) of section 667.5 does list "[a]ny felony punishable by death or imprisonment in the state prison for life." Section 246 does not provide for life imprisonment. Accordingly, the question is whether the imposition of a life sentence pursuant to the enhancement of defendants felony conviction under section 246 by means of section 186.22, subdivisions (b)(4)(B) and (e)(5), which provide for a sentence of 15 years to life, triggers the application of section 2933.1.
In Thomas, supra, 21 Cal.4th 1122, the defendant was convicted of various offenses and sentenced to state prison for three consecutive indeterminate terms of 25 years to life based on two strike priors and a determinate term for enhancements. (Id. at pp. 1124-1125.) The Supreme Court determined that defendants conduct credit was not limited to 15 percent under sections 667.5, subdivision (c)(7) and 2933.1 because the limitation applied "only when the defendants current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist" or "even if the sentence is based in part on conduct other than the commission of the current felony." (Id. at pp. 1127, 1130.) As noted, section 246 is not "itself punishable by life imprisonment . . . ."
Citing the specific facts of Thomas, the Attorney General argues: "the instant case does not present a case where [defendant] is sought to be punished under the presentence credit limitation of section 2933.1 for his recidivism." We disagree.
Thomas does not turn on the fact of recidivism for that was merely an instance of a condition which aggravated the penalty for an offense which did not "itself" provide for a life sentence. It clearly does not include any aggravating condition not contained in the offense "itself."
As defendant argues, the Legislature included extortion and threats to victims or witnesses in the section 667.5, subdivision (c) list. These offenses are elevated to seven years to life when enhanced by the anti-gang statute (§§ 186.22, subd. (b)(4)(C), 667.5, subds. (c)(19), (20)). The Legislature has been expanding the list since its adoption and has neglected to include section 246 when enhanced by the anti-gang statute.
The trial court erroneously calculated conduct credit under section 2933.1. Defendant is entitled to conduct credit under section 4019. We will modify the judgment accordingly.
DISPOSITION
The judgment is modified to provide 50 days of conduct credit pursuant to section 4019 for a total of 152 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.
We concur: DAVIS, J., RAYE, J.