People v. Delcarlo CA3

Filed 11/21/13 P. v. Delcarlo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Calaveras) ----

THE PEOPLE, C071747

Plaintiff and Respondent, (Super. Ct. No. F4595)

v.

JAMES DELCARLO,

Defendant and Appellant.

In March 2009 defendant James Delcarlo was observed hunting in a prohibited area. In June 2011 he pleaded no contest to possession of a firearm by a convicted felon. (Pen. Code, § 12021, subd. (a)(1).)1 Two related counts were dismissed in light of the plea. Defendant was sentenced to prison for three years. Execution of sentence was suspended and defendant was placed on probation for three years on the conditions, among others, that he serve a period of incarceration and report monthly to the probation department.

1 Further statutory references are to the Penal Code unless otherwise indicated.

1

In March 2012 the probation officer filed a petition alleging defendant violated his probation by failing to report to jail for incarceration and by failing to report monthly to the probation department. Defendant admitted the violations. The trial court ordered execution of the prison sentence and awarded defendant 60 days’ custody credit and 30 days’ conduct credit. Defendant appealed to this court. In October 2012 his appellate counsel sent a letter to the trial court requesting an additional 30 days’ conduct credit. The trial court issued a minute order denying the request. On appeal, defendant contends principles of equal protection entitle him to the additional conduct credit. The Attorney General agrees that defendant is entitled to the credit, albeit based upon principles of statutory construction rather than of equal protection. We modify the judgment. FACTS The facts of defendant’s offense are not at issue and need not be set forth in this opinion. Defendant was in presentence custody for 60 days: on November 7, 2011; from December 7 through December 12, 2011; and from April 17 through sentencing on June 8, 2012. DISCUSSION Defendant contends he is entitled to an additional 30 days’ conduct credit pursuant to the January 25, 2010, version of section 4019. The Attorney General concedes that this is so. We accept the Attorney General’s concession. “Since 1976, Penal Code section 4019 has offered prisoners in local custody the opportunity to earn ‘conduct credit’ against their sentences for good behavior.” (People v. Brown (2012) 54 Cal.4th 314, 317, fn. omitted (Brown).) “Before January 25, 2010, conduct credits under Penal Code section 4019 could be accrued at the rate of two days for every four days of actual time served in presentence custody.” (People v.