People v. Duran

California Court of Appeal Oct 16, 1998 No. No. B114409Published

Before: Epstein

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Holding. The court held that a defendant convicted of a felony listed in Penal Code section 667.5 is limited to 15 percent precommitment conduct credit under section 2933.1, and that appellate courts have the authority to correct such sentencing errors.

Issues

Whether the evidence was sufficient to support the convictions for attempted murder and exhibiting a deadly weapon.
Whether CALJIC No. 2.90 adequately instructed the jury on reasonable doubt.
Whether the trial court erred in its calculation of precommitment conduct credits under Penal Code section 2933.1.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“Because appellant was convicted of a felony offense listed in Penal Code section 667.5—attempted murder (subd. (c)(12)), and great bodily injury (subd. (c)(8))—he is entitled to no more than 15 percent conduct credits.”

“[S]ection 2933.1 applies to the offender not to the offense and so limits a violent felon’s conduct credits irrespective of whether or not all his or her offenses come within section 667.5.”

Opinion

EPSTEIN, J. Andy Duran challenges his convictions for attempted first degree murder, assault with a firearm, and exhibiting a deadly weapon to [269]resist arrest. He argues that the record lacks sufficient evidence to support the first and third counts. He also argues that CALJIC No. 2.90 does not adequately instruct the jury on the meaning of the phrase “beyond a reasonable doubt.” In the unpublished portions of the opinion, we conclude these contentions lack merit, and affirm the judgment.

In the published portion of this opinion, we agree with the Attorney General’s argument and modify the judgment to reflect an award of 76 days’ precommitment conduct credit. In all other respects, the judgment is affirmed. We also direct the court to prepare an amended abstract of judgment to reflect the correct credit award and the $200 fine.

Factual and Procedural Summary*

Discussion

I-Ifl*

Appellant was confined for 512 days before sentencing. The trial court awarded him 332 days of precommitment conduct credit—16 days on count one and 256 days on count three. The Attorney General argues the court incorrectly calculated appellant’s conduct credit. The Attorney General argues that under Penal Code section 2933.1, appellant is entitled to only 15 percent of the time he served in precommitment confinement. Subdivision (c) of that statute provides: “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned . . . prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” Subdivision (a) applies to any person who is convicted of a felony offense listed in section 667.5. Appellant falls within that category.

By presenting this argument on appeal, the Attorney General implicitly recognizes that this court is authorized to entertain it and to grant the relief requested. In other cases, the Attorney General has argued that, pursuant to Penal Code section 1237.1, the appellate court lacks authority to correct errors in calculating the amount of presentence conduct credits to which a [270]

People v. Duran

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