People v. Zaragoza

92 Cal.Rptr.2d 220 (2000) 77 Cal.App.4th 1032 The PEOPLE, Plaintiff and Respondent,

v.

David Victor ZARAGOZA, Defendant and Appellant.

No. B128936. Court of Appeal, Second District, Division Five.

January 27, 2000. Rehearing Denied February 28, 2000. Review Denied May 10, 2000.[**] [221] Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

Certified for Partial Publication.[*]

TURNER, P.J.

I. INTRODUCTION

Defendant, David Victor Zaragoza, appeals from his conviction for assault on a child under the age of eight causing death (Pen.Code,[1] § 273ab) and second degree murder. (§ 187, subd. (a).)

II. DISCUSSION

A.-B.[***]

Defendant has been convicted of both assault on a child under the age of eight causing death (§ 273ab) and second degree murder (§ 187) arising out of the same incident. The trial court stayed the sentence for second degree murder pursuant to section 654, subdivision (a).[2] The [222] deputy district attorney argued that defendant's award of presentence conduct credits should be limited to 15 percent pursuant to section 2933.1. The trial court calculated the amount of time served in custody prior to the imposition of sentence to be 333 days which included 111 days of conduct credits. In other words, the trial court concluded that defendant was entitled to two days of conduct credits for every four days spent in county jail awaiting sentencing as contemplated by section 4019. (See People v. Heard (1993) 18 Cal.App.4th 1025, 1028, 22 Cal.Rptr.2d 684; e.g., People v. Fabela (1993) 12 Cal. App.4th 1661, 1664, 16 Cal.Rptr.2d 447.) It is the position of the Attorney General that defendant should have received sentence conduct credits of 15 percent of the 222 days actually served in local custody prior to sentencing, or 33 days. The failure to properly calculate presentence conduct credits is a jurisdictional error which can be raised by the Attorney General in connection with a defendant's appeal. (People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15, 14 Cal.Rptr.2d 801, 842 P.2d 100.)