People v. Martinez CA6

Filed 10/15/13 P. v. Martinez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038945 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1089256)

v.

SALVADOR MARTINEZ,

Defendant and Appellant.

Defendant Salvador Martinez entered a negotiated guilty plea to assault with a deadly weapon and reckless driving while evading the police. He also admitted allegations for purposes of sentence enhancement that he personally inflicted great bodily injury (GBI) on the assault victim and committed both offenses for the benefit of a criminal street gang. Finally, he admitted an allegation that he had served a prior prison term, for purposes of sentence enhancement. In sentencing him to 14 years and eight months pursuant to the plea bargain, the trial court imposed a three-year term for the assault conviction plus 10 years for the gang enhancement and an eight-month term for the evasion conviction plus one-year for the gang enhancement. It then struck a three-year punishment for the GBI admission and a one-year punishment for the prison-term admission under Penal Code section 1385, subdivision (c)(1) (striking enhancement or enhancement punishment in furtherance of justice).1 It then awarded him presentence credits of 748 actual days and 112 conduct credits. On appeal, 1 Further unspecified statutory references are to the Penal Code.

defendant contends that the trial court erred by restricting his conduct credits. We disagree and affirm the judgment. BACKGROUND The trial court expressly stated that it was striking the punishment for the GBI enhancement to achieve the agreed-upon prison term. And it expressly calculated the conduct credits to be 15 percent of actual custody days in accordance with section2933.1, which imposes that limit upon persons who are convicted of a violent felony. Section 667.5, subdivision (c)(8), defines a violent felony as “Any felony in which the defendant inflicts great bodily injury on any person... which has been charged and proved....” DISCUSSION Defendant contends that, rather than 15 percent conduct credits, the trial court should have awarded him two-for-four conduct credits under the September 2010 version of section 4019. He claims that section 2933.1 does not apply to him because he was not a person convicted of a violent felony. He so reasons because the trial court struck the punishment for the GBI admission. He acknowledges that the case of In re Pacheco (2007) 155 Cal.App.4th 1439, addressed and rejected this identical contention. He urges, however, that Pacheco was wrongly decided and should not be followed. He argues that Pacheco rested upon a perceived distinction between striking an enhancement-allegation admission in its entirety (rendering the person no longer convicted of a violent felony) and striking the punishment (leaving the conviction extant). (Id. at pp. 1444-1445 [“It is the conviction, and not the punishment, that is determinative.”].) According to defendant, the distinction is premised upon the erroneous notion that “a reduction in credits is not considered ‘punishment’ under the law.” (Id. at p. 1445.) Defendant poses that a reduction in credits is punishment and, thus, when the trial court struck the substantive punishment it also struck the credit-restricting punishment. Defendant’s analysis is erroneous.