The People v. Dunn CA1/3

Filed 9/26/13 P. v. Dunn CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A137048 v. RICKEY V. DUNN, (San Francisco County Super. Ct. No. 215953) Defendant and Appellant.

Rickey V. Dunn (appellant) appeals from a judgment entered after he admitted violating his probation and the trial court sentenced him to two years in state prison. He contends he was entitled to additional days of custody credit under Penal Code section 40191 for days he spent in custody after October 1, 2011. We reject the contention and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On June 21, 2011, an information was filed charging appellant with felony assault with force likely to cause great bodily injury (§ 245, subd. (a)(1), count one), misdemeanor battery (§ 243, subd. (e)(1), count two), and contempt of court regarding a stay away or protective order (§ 166, subd. (c)(1), count three). Appellant pleaded guilty to assault and the remaining charges were dismissed. On September 15, 2011, the court suspended imposition of sentence and placed appellant on probation for three years with various conditions, including that he serve one year in jail.

1 All further statutory references are to the Penal Code.

1

On May 10, 2012, the district attorney moved to revoke appellant’s probation and the court administratively revoked probation that day. On June 18, 2012, appellant admitted having violated his probation. On October 12, 2012, the court sentenced him to the low term of two years in prison. The court awarded him 403 days of credit for actual time served and 200 days of conduct credit. Because the only issue on appeal relates to the award of custody credits, a summary of the underlying offense and probation violation is not relevant. DISCUSSION A defendant sentenced to prison is entitled to have all presentencing days spent in custody credited against the term of imprisonment. (§ 2900.5, subd. (a).) The defendant also may be awarded additional presentence conduct credits for satisfactorily performing labor assignments (§ 4019, subd. (b)), and for complying with “reasonable rules and regulations” (§ 4019, subd. (c)). Section 4019 has been amended several times in recent years. Before January 25, 2010, defendants were entitled to two days of conduct credit for every four days of actual time served in presentence custody. (Former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Effective January 25, 2010, the Legislature amended section 4019 to accelerate the accrual of presentence conduct credit such that certain defendants earned one-for-one conduct credits, or two days of conduct credit for every two days in custody.2 (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50 [enacting Sen. Bill No. 18XXX].) Effective September 28, 2010, the Legislature again amended section 4019, restoring the less generous one-for-two presentence conduct credit calculation that had been in effect before the January 25, 2010 amendment. (Former § 4019, subds. (b), (g), as amended by Stats. 2010, ch. 426, §§ 1, 2, 5 [enacting Sen. Bill No. 76].) Thereafter, 2 “The Legislature withheld this possibility of early release, however, from any prisoner who was required to register as a sex offender (see § 290 et seq.), was committed for a serious felony (see § 1192.7), or had a prior conviction for a serious or violent felony (see §§ 667.5, 1192.7). (Former § 4019, subds. (b)(2), (c)(2).)” (People v. Lara (2012) 54 Cal.4th 896, 899.)