California Court of Appeal Jan 14, 2014 No. E057097Unpublished
Filed 1/14/14 P. v. Gatison CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057097
v. (Super.Ct.No. FCH1100379)
JOHNNIE JOSEPH GATISON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown,
Judge. Affirmed as modified.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and James D. Dutton and
Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant Johnnie Joseph Gatison appeals from his conviction of battery by a
prisoner on a nonconfined person (Pen. Code,1 § 4501.5, count 1).2 He contends he is
entitled to presentence custody credits for the days the parole revocation sentence he was
serving at the time he committed the current offense was extended due to the current
offense. He also contends his $240 restitution and parole revocation fines should be
reduced to the statutory minimum of $200 because the trial court failed to exercise
discretion in imposing the fines.
II. FACTS AND PROCEDURAL BACKGROUND
In 2010, defendant was serving a sentence at California State Prison on a parole
violation; his release date was July 14, 2011. Defendant committed a battery on a
correctional officer at the prison (§ 4501.5, count 1) on November 23, 2010. At a Board
of Parole Hearing (BPH), it was found that defendant’s conduct had violated prison rules,
and his parole revocation sentence he was serving was extended by 180 days.
On April 2, 2012, an information was filed charging him with both counts, and a
jury found him guilty as charged. Defendant admitted two prison priors (§ 667.5, subd.
(b)).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2Defendant was also convicted of a misdemeanor violation of resisting an executive officer on January 23, 2012, while confined in county jail (§ 69, count 2). He does not raise any issue related to that conviction.
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Before sentencing, defendant, who represented himself in propria persona, moved
for presentence credits for the time he spent in custody after July 14, 2011, arguing he
would have been released on that date but for the parole revocation sentence imposed for
the same conduct underlying the current offense. The People opposed the motion on the
ground that section 4501.5 mandated a consecutive sentence, so that defendant’s sentence
for that offense could commence only after completion of his parole revocation sentence
on January 10, 2012. In their opposition to that motion, the People argued: “Defendant
was already an incarcerated inmate serving time in state prison when he attacked and
battered correctional officer, Nathan Lomeli, on November 23, 2010. As a result of the
crime committed by Defendant while serving his prison term, Defendant appeared at an
administrative Board of Parole Hearing . . . . At that hearing, Defendant was found to be
in violation of the prison rules, and his prison term was extended an additional 180 days
consecutively from his earlier release date.” (Boldface & underscore omitted; italics
added.) The People provided the declaration of Amanda Thompson, a correctional
officer for the California Department of Corrections and Rehabilitation (CDCR) and the
investigating officer in the case, as follows:
“3. As part of my duties in this case, I have reviewed the prison records of
Defendant in order to determine and confirm his custody credits that he is entitled to.
Defendant’s prison records are kept by CDCR in the ordinary course of business, and I
have reviewed his records to determine his custody credits as follows:
“a. Defendant was arrested for a parole violation on July 14, 2010.
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“b. As a result of the parole violation, Defendant was subsequently
returned to the custody of the California State Prison to serve one (1) year ‘flat,’ which
means he would serve one (1) year in prison custody without any credits. Based on this
finding by the CDCR, Defendant’s Revocation Release Date (‘RDD’) was July 14, 2011.
“c. On November 23, 2010, Defendant committed the crime of Battery on
a Non-confined Person by Prison[er], in violation of Penal Code § 4501.5. As a result of
this crime, Defendant appeared in fr[ont] of an administrative Board of Parole Hearing
(‘BPH’). At that hearing, Defendant was found to be in violation of the prison rules,
which resulted in his prison term extended 180 days ‘flat’ consecutively from his earlier-
stated release date. Because Defendant received 180 additional days for his prison
violation, his new release date calculated by the CDCR was extended to January 10,
2012. This meant that Defendant’s prison discharge date was extended 180 days to
January 10, 2012, regardless of what happened in his subsequent court hearing in case
number FCH1100379. . . .
“4. Because Penal Code § 4501.5 mandates a consecutive sentence, Defendant
would not be entitled to earn credits in FCH1100379 until after he was discharged from
his existing prison term, which expired on January 10, 2012. Thus, any custody credits
Defendant is entitled to in FCH1100379 would not start accruing until January 11, 2012.”
Defendant further notes that section 1202.4, subdivision (b)(2) provides: “In
setting a felony restitution fine, the court may determine the amount of the fine as the
product of the minimum fine . . . multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.” He posits that because the trial court did not employ that
statutory formula, which would have led to a fine of $1,000 (a minimum fine of $200 for
his felony conviction multiplied by five (the number of years of his sentence), the court
demonstrated it misunderstood the applicable statutory minimum.
We disagree. Section 1202.4, subdivision (b)(2) provides a formula the trial court
“may” use, not a required method of calculating the fine. If the formula were required,
the language of section 1204.4, subdivision (b)(1), which authorizes the fine to “be set at
the discretion of the court and commensurate with the seriousness of the offense,” would
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be rendered essentially meaningless. The trial court’s failure to apply the statutory
formula did not demonstrate any misunderstanding of the scope of its discretion.
IV. DISPOSITION
The trial court is directed to correct defendant’s presentence custody credits to
include the time he spent in custody between July 15, 2011, and January 10, 2012, to
issue a new abstract of judgment reflecting the same, and to forward the corrected
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLEHORST J. We concur:
RAMIREZ P.J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was entitled to presentence custody credits for the time his parole revocation sentence was extended because the extension was solely attributable to the conduct underlying his current conviction. The court otherwise affirmed the judgment, finding no error in the trial court's imposition of restitution and parole revocation fines.
Issues
Whether the defendant is entitled to presentence custody credits for the period his parole revocation sentence was extended due to the current offense.
Whether the trial court failed to exercise its discretion in imposing restitution and parole revocation fines.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“Defendant has satisfactorily demonstrated that “but for” that attack, he would have been free of custody after July 14, 2011, and he is therefore entitled to custody credits after that time.”