Opinion
H042957
12-29-2016
THE PEOPLE, Plaintiff and Respondent, v. STEVEN GARY SHORTT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS151155A & SS132553A)
Defendant Steven Shortt was convicted of possession for sale of a controlled substance (Health & Saf. Code, § 11351), and second-degree robbery (Pen. Code, § 211) in two separate cases.
The court limited defendant's presentence conduct credit on the drug offense to 15 percent of his actual time in custody pursuant to Penal Code section 2933.1. Defendant argues on appeal that the court erred, and that he was entitled to 50 percent presentence conduct credit pursuant to section 4019.
All further unspecified statutory references are to the Penal Code.
STATEMENT OF THE CASE
The underlying facts of the two criminal cases are omitted because they are not relevant to the issue on appeal. --------
In December 2013, defendant was charged with two counts of possession for sale of a controlled substance. (Health & Saf. Code, § 11351), and two counts of possession of a controlled substance (Health & Saf. Code § 11350, subd. (a)). In January 2014, defendant pleaded no contest to one count of possession for sale of a controlled substance. The court suspended imposition of sentence and placed defendant on probation of a period of three years.
Defendant violated the terms of his probation several times. Finally, in March 2015, the court revoked and terminated defendant's probation. The court ordered defendant to serve a total fixed term of four years, with two years to be served in custody and the remainder to be served in a residential drug treatment program. The court awarded defendant a total of 468 days of custody credit comprised of 234 actual days and 234 conduct credits. The court also ordered two years of mandatory supervision.
In July 2015, defendant was charged with second-degree robbery (Pen. Code, § 211). The complaint also alleged that defendant had suffered a prior conviction for a serious and/or violent felony (§§ 667, subds. (c) & (d); 1170.2, subd. (c)(1) & 1192.7, subd. (c)), and had served a prior prison term (§ 667.5, subd. (b).) At the same time, the court found defendant in violation of his mandatory supervision in the drug case.
In October 2015, defendant pleaded guilty to second-degree robbery in exchange for a stipulated sentence of two years in state prison to run concurrent with the four-year term for the violation of his mandatory supervision in the previous drug case. For the drug convictions, the trial court imposed the four-year prison term, and awarded defendant a total of 827 days of presentence credit consisting of 431 days actual time served and 396 days of conduct credit.
For the second-degree robbery case, the trial court awarded defendant a total of 110 days or presentence custody credit consisting of 96 days of actual time served and 14 days of conduct credit.
The matter was continued to November 3, 2015 for a confirmation of custody credits. At that hearing, the court recalculated defendant's credits on the drug case pursuant to section 2933.1, reducing defendant's presentence conduct credit from 50 percent pursuant to section 4019, to 15 percent of the actual time served in custody. The court awarded defendant 573 days of presentence custody credit, consisting of 503 days actual time served and 70 days of conduct credit. Defendant timely appealed.
ARGUMENT
Defendant argues that the trial court erred when it reduced his presentence custody conduct credits to 15 percent of the actual time served on the drug case pursuant to section 2933.1. He asserts that because the time he served for his drug case prior to his arrest for second-degree robbery was for a nonviolent offense, he was entitled to presentence conduct credit at the rate of 50 percent of his actual time served pursuant to section 4019.
Section 2933.1, subdivision (a) provides "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 presentence and prison conduct credits. In this case, defendant was convicted of possession of a controlled substance, a non-violent offense, and second-degree robbery, a violent offense. Second-degree robbery is a felony offense listed in section 667.5, subdivision (c) and is subject to section 2933.1's presentence custody credit limitation. However, possession of a controlled substance is not subject to the limitations of section 2933.1, and is subject instead to the provisions of section 4019 allowing defendant to earn presentence conduct credits at the rate of 50 percent of actual time served. Here, the trial court applied section 2933.1 to both cases, and limited defendant's credit on the drug conviction, not only for the period when he was serving time for both cases, but also for the time before his arrest on the second-degree robbery offense, and was serving time on the drug case exclusively.
In support of the argument that he is entitled to additional credit for his drug crime, defendant cites In re Reeves (2005) 35 Cal.4th 765 (Reeves), which addressed the issue of post-conviction prison work-time credits. In Reeves, the defendant was serving a five-year term for a violent felony and a concurrent 10-year term for a nonviolent felony. The court held that once the defendant had completed his five-year term for the violent felony, the 15 percent credit limitation under section 2933.1, subdivision (a) no longer applied to the remaining five-year term he was serving for the nonviolent felony. The court explained that "section 2933.1[, subdivision] (a) has no application to a prisoner who is not actually serving a sentence for a violent offense; such a prisoner may earn credit at a rate unaffected by the section." (Reeves, supra, 35 Cal.4th at p. 780, fn. omitted, italics added.) Once the defendant in Reeves had served the full prison term on the violent felony, the fact that he had been convicted of a violent felony was a "historical fact" that did not trigger application of section 2933.1 on the remaining term for the nonviolent felony. (Reeves, supra, 35 Cal.4th at p. 777.)
Defendant argues that the rationale of Reeves should apply to this case in the reverse. Specifically, he suggests that "if a violent felony conviction cannot be used as a [sic] historical fact to reduce credits in a future, non-violent case, it should not be used as a current fact to reduce credits in a prior, non-violent case." Defendant asserts that his situation is the opposite of the defendant's in Reeves, because instead of having first served a period in custody for a violent felony and then a period for a non-violent felony, here defendant first served a period for a non-violent felony before being arrested for a violent felony. As such, he argues, section 2933.1's limitation of credits applied to him only after his arrest on the violent felony.
Reeves is distinguishable from the present case, because Reeves addressed the issue of post-conviction prison work-time credits rather that pre-sentencing conduct credits at issue here. Specifically, Reeves considered the question of whether a particular prisoner would be considered " 'convicted' " of a qualifying offense within the meaning of section 2933.1, subdivision (a) if he has served the sentence for that crime and would "but for the time remaining on that separate concurrent term for [a non-qualifying] offense, . . . be entitled to release." (Reeves, supra, 35 Cal.4th at p. 777.) The court's rationale in Reeves is not applicable to the present case, because here, we are not presented with the question of whether defendant was "convicted," and whether that conviction could be considered a historical fact in limiting his credit to 15 percent under section 2933.1, subdivision (a).
While Reeves involved prison work-time credits, it did cite with approval the case of People v. Ramos (1996) 50 Cal.App.4th 810 that addressed the issue of limitation of presentence conduct credits under section 2933.1. In Ramos, the defendant was convicted of robbery, which is a non-qualifying offense, as well as possession of and being under the influence of a controlled substance, which are not. The court found that all of the charges were subject to the 15 percent limitation on presentence conduct credits, noting that section 2933.1 applied " '[n]otwithstanding section 4019' " to " 'any person' " convicted of a listed offense. From this, the court concluded that the credit limitation " 'applies to the offender not to the offense and so limits a violent felon's [presentence] conduct credits irrespective of whether or not all his other offenses come within section 667.5.' " (Ramos, supra, 50 Cal.App.4th at p. 817, italics added.)
Similarly, in People v. Nunez (2008) 167 Cal.App.4th 761, the defendant was charged in separate cases with the violent crime of robbery and the non-violent crime of unlawful driving. After revoking probation on the robbery charge, the court imposed a concurrent prison term and limited the defendant's presentence conduct credit to 15 percent for both crimes. The court of appeal held that the trial court's limitation on credits was proper, stating: "It is often said that the 15 percent cap applies to the offender, not the offense; thus, the 15 percent limit applies to each offense of a defendant's entire prison term if any of the offenses for which he is sent to prison is violent." (Id. at p. 765.)
Defendant argues that the trial court erred in relying on Nunez in limiting his presentence credit, because in Nunez, the defendant was arrested for robbery before he was arrested for unlawful driving. Defendant argues that here, he was charged first with the drug offense, and then later with the robbery. He argues "nothing in Nunez suggests presentence custody credits, attributable solely to a non-violent felony, should be limited based on a later period of presentence confinement which is attributable to a violent felony."
While it is true that defendant was arrested first for his drug offense, his prison term for that as well as the robbery was imposed at the same time. The 15 percent credit limitation applied to defendant as a violent offender, and in turn, applied to each offense of his entire prison term. (People v. Nunez, supra, 167 Cal.App.4th at p. 765.) The trial court properly limited defendant's presentence custody credit on his drug offense to 15 percent.
DISPOSITION
The judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.