People v. Brown CA4/2

• Court: California Court of Appeal
• Decided: January 5, 2021
• Docket: E074257
• Status: Unpublished

Opinion

Filed 1/5/21 P. v. Brown CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074257

v. (Super.Ct.No. FWV19001083)

JASON COREY BROWN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Affirmed as modified with directions.

Randall Conner, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather

B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant Jason Corey Brown contends that pursuant to Senate Bill No. 136

(2019-2020 Reg. Sess.), both of his prior prison term enhancements must be stricken.

Defendant further maintains he is entitled to an additional day of custody credit. The

People concede both issues. The judgment is affirmed as modified with directions.

I. PROCEDURAL BACKGROUND1

A jury convicted defendant of grand theft (Pen. Code, § 487, subd. (a), count 1)

and found true the value of the merchandise was more than $950. The trial court

subsequently found true allegations that defendant had suffered two prior prison terms

(Pen. Code, former § 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-

(i), 1170.12, subds. (a)-(d)).

The trial court thereafter sentenced defendant to six years of imprisonment,

consisting of the upper term of three years on the count 1 offense, doubled pursuant to the

strike prior. The court imposed an additional year on each of the two prior prison terms,

but stayed imposition of punishment “because of the change in the law that’s coming in

January. SB136.” The court awarded defendant a total of 496 days of custody credits

consisting of 248 actual days and 248 days of conduct credit.

1 The underlying facts of defendant’s offense are irrelevant to the issues raised on appeal. 2 II. DISCUSSION

A. Prior Prison Term Enhancements.

Defendant contends that pursuant to Senate Bill No. 136, both of his prior prison

term enhancements must be stricken. The People concede the issue. We agree.2

“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to

impose a one-year sentence enhancement for each true finding on an allegation the

defendant had served a separate prior prison term and had not remained free of

custody for at least five years. [Citation.] Courts nevertheless had discretion to strike

that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of

January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amend[ed] section 667.5,

subdivision (b) [(Stats. 2019, ch. 590, § 1)] to limit its prior prison term enhancement to

only prior prison terms for sexually violent offenses, as defined in Welfare and

Institutions Code section 6600, subdivision (b).” (People v. Jennings (2019)

42 Cal.App.5th 664, 681.)

“By eliminating section 667.5, subdivision (b) enhancements for all prior prison

terms except those for sexually violent offenses, the Legislature clearly expressed its

intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison

terms for offenses other than sexually violent offenses. [Citation.] Therefore, we

2 Even prior to the passage of Senate Bill No. 136, a stayed sentence on a prior prison term enhancement was an unauthorized sentence. (People v. Langston (2004) 33 Cal.4th 1237, 1242; see People v. Perez (2011) 195 Cal.App.4th 801, 805.) Thus, irrespective of Senate Bill No. 136, we would be compelled to order the prior prison terms stricken.

3 conclude, and the parties agree, that under the Estrada[3] rule, Senate Bill No. 136’s . . .

amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final

as of its January 1, 2020, effective date.” (People v. Jennings, supra, 42 Cal.App.5th at

p. 682; accord People v. Herrera (2020) 52 Cal.App.5th 982, 995-996, review granted

Oct. 14, 2020, S264339.)

Here, neither of the criminal convictions leading to defendant’s prison sentences,

which were alleged as prior prison term enhancements, were based on sexually violent

offenses.4 Moreover, defendant’s judgment is not yet final. Thus, we shall modify the

judgment to strike both prior prison term enhancements. (People v. Gastelum (2020)

45 Cal.App.5th 757, 773 [“[W]here, as here, an enhancement is erroneously imposed and

the trial court has already imposed the maximum possible sentence, a remand for

resentencing is unnecessary.”].)

B. Custody Credits.

Defendant maintains he is entitled to an additional, actual day of custody credit.

The People concede the issue. We agree.

“‘A defendant is entitled to actual custody credit for “all days in custody” in

county jail . . . including partial days.’ [Citation.] ‘Calculation of custody credit begins

on the day of arrest and continues through the day of sentencing.’ [Citation.] ‘“The law

takes no notice of fractions of a day. Any fraction of a day is deemed a day . . . .”’

3 In re Estrada (1965) 63 Cal.2d 740.

4 Both prior prison terms served by defendant derived from his convictions for robbery. (Pen. Code, § 211.) 4 [Citation.] The day the defendant is arrested counts as a custody credit day no matter

how many hours or minutes the defendant was in jail on that day.” (People v. Valdes

(2020) 53 Cal.App.5th 953, 955.) “A sentence that fails to award legally mandated

custody credit is unauthorized and may be corrected whenever discovered.” (People v.

Taylor (2004) 119 Cal.App.4th 628, 647; accord People v. Chilelli (2014)

225 Cal.App.4th 581, 591.)

Defendant was arrested on March 31, 2019. The trial court sentenced defendant

on December 4, 2019. Defendant remained in custody during the entirety of that period.

The court awarded defendant a total of 496 days of custody credits consisting of 248 days

of actual and 248 days of conduct credit. However, counting every day defendant spent

in custody, including the day of his arrest and the day of his sentencing, amounts to

249 days. Thus, the court should have awarded defendant an additional day of actual

custody credit.

III. DISPOSITION

The judgment is modified to strike the two, one-year prior prison term

enhancements imposed under former section 667.5, subdivision (b), and defendant is

awarded one additional day of actual custody credit. The trial court is directed to prepare

a corrected abstract of judgment and forward it to the Department of Corrections and

5 Rehabilitation. (People v. Gastelum, supra, 45 Cal.App.5th at p. 773.) As modified, the

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

CODRINGTON J.

MENETREZ J.