People v. Villasenor CA6

Filed 12/18/13 P. v. Villasenor 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038217 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. CC952718, C1069369)

v.

JOSEPH VILLASENOR,

Defendant and Appellant.

1 Penal Code section 2933.1 provides that “the maximum [conduct] credit that may be earned” for a period of presentence custody “shall not exceed 15 percent” of the actual days of custody for “any person who is convicted of” a violent felony offense. (§ 2933.1, subds. (a) & (c).) Defendant Joseph Villasenor committed a nonviolent felony in 2009 and served a period of presentence custody for that offense in 2009. In 2010, he committed a violent felony, which led to a 2011 conviction for the violent felony. He was sentenced for both convictions at the same time and received a consecutive term for the 2009 conviction. His sole contention on appeal is that the trial court erred in limiting his conduct credit for his 2009 presentence custody time to 15 percent under section 2933.1. We reject his contention and affirm the judgment.

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

I. Background Defendant was in presentence custody for an August 2009 criminal threats (§ 422) offense from August 17, 2009 to October 29, 2009. In October 2009, he pleaded no contest to the August 2009 criminal threats count. Defendant, who remained on probation in an unrelated case, was released, and the sentencing hearing was continued 2 for one year. In January 2010, he committed an assault with a deadly weapon (§ 245, subd. (a)(1)) in which he personally used a deadly weapon (§§ 667, 1192.7, subd. (c)) and personally inflicted great bodily injury (§ 12022.7) on the victim of the assault. He was returned to custody in April 2010. In August 2011, defendant pleaded no contest to the January 2010 assault and admitted the personal use and great bodily injury allegations. Defendant also admitted in the assault case that he had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)). In March 2012, the court imposed a 16-year prison term in the assault case and a 3 consecutive eight-month term in the criminal threats case. Defendant’s conduct credit for the assault case, a violent felony, was indisputably limited to 15 percent under section 2933.1. The trial court also limited defendant’s conduct credit in the criminal threats case to 15 percent under section 2933.1. Therefore, the court awarded defendant only 11 days of conduct credit for his 74 days of actual custody in the criminal threats case under section 2933.1 rather than the 36 days of conduct credit to which he would have been entitled under former section 4019.