Opinion
H045789 H046749
11-06-2019
THE PEOPLE, Plaintiff and Respondent, v. JASON LUCIANO RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1773048, C1774852)
A felony complaint in case No. C1773048 charged defendant with grand theft (Pen. Code, §§ 484-487, subd. (a); count 1), possessing a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 2), carrying a loaded firearm on his person and in a vehicle (Pen. Code § 25850; count 3), giving a false name to a peace officer (Pen. Code, § 148.9, a misdemeanor; count 4), and battery (Pen. Code, §§ 242-243, subd. (a), a misdemeanor; count 5). Six prior prison terms were alleged under Penal Code section 667.5, subdivision (b). A felony complaint in case No. C1774852 charged defendant with one count of grand theft (Pen. Code, §§ 484-487, subd. (a)) and alleged the same prior prison terms.
Defendant pleaded no contest to all counts in a global disposition. He admitted three prior prison terms which the trial court struck in the interest of justice. He was sentenced to an aggregate 32-month prison term, and was awarded 340 days of presentence credits. The court ordered defendant placed on three years' parole or post-release community supervision following his release from custody.
Defendant filed a notice of appeal, followed by a motion in the trial court to award him an additional 29 days of presentence custody credits. Defendant appealed from the order denying his motion (which cited the wrong arrest date in case No. C1774852) and this court ordered that the cases be considered together.
The Attorney General concedes that the trial court erred by awarding 340 days of custody credit instead of 349 days. Under Penal Code section 2900.5, subdivision (a), all days of jail custody, "including days ... credited to the period of confinement pursuant to Section 4019, ... shall be credited upon [a] term of imprisonment" for the applicable conviction. Under Penal Code section 4019, subdivisions (a)(1) and (f), a person confined to county jail is deemed to have served four days for every two days actually spent in custody from the date of arrest to the date when sentence commences under a judgment of imprisonment, "unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned," or "has not satisfactorily complied with the reasonable rules and regulations." (Id., subds. (b), (c).) Nothing in the record shows that defendant was disqualified from receiving those conduct credits.
Defendant was arrested in case No. CC1774852 on August 18, 2017 and released on bail on August 21, 2017. In that case he is entitled to four days of actual presentence confinement credit plus four days credit under Penal Code section 4019. In case No. C1773048, defendant was in custody from his arrest on September 12, 2017 through sentencing on March 1, 2018. In that case he is entitled to 171 days of actual presentence confinement credit plus 170 days credit under Penal Code section 4019. We will exercise our authority to credit defendant the additional nine days. (In re Ricky H. (1981) 30 Cal.3d 176, 191 [recognizing appellate court's authority to correct unlawful sentence].)
DISPOSITION
The judgment is modified to reflect a total of 349 days credit against defendant's prison term under Penal Code section 2900.5. That credit consists of four days actual presentence custody plus four days credit under Penal Code section 4019 in case No. C1773048, and 171 days actual presentence custody plus 170 days credit under Penal Code section 4019 in case No. C1774852. As modified, the judgment is affirmed.
The Clerk of the Superior Court is directed to prepare and transmit to the Department of Corrections and Rehabilitation a corrected abstract of judgment reflecting our disposition.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Elia, Acting P. J. /s/_________
Danner, J.