P. v. Vasquez CA2/6

Filed 4/3/13 P. v. Vasquez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B237778 (Super. Ct. No. 2011005801) Plaintiff and Respondent, (Ventura County)

v.

JORGE VASQUEZ,

Defendant and Appellant.

Jorge Vasquez (Vasquez) challenges the trial court's calculation of presentence conduct credits and the sufficiency of the evidence underlying one of his three convictions. We modify the judgment to include additional conduct credits, but otherwise affirm. FACTS AND PROCEDURAL HISTORY On January 25, 2011, Vasquez approached his former girlfriend, Brianna Hernandez, in the parking lot outside the Vons market where she worked. Vasquez grabbed for her car keys. They struggled over them, back and forth, for more than 30 seconds before Vasquez wrested them from her. After Hernandez fled into the Vons, Vasquez drove off in her car without her permission. Vasquez returned the car several minutes later, but he had damaged the car and taken some of Hernandez's personal property.

Among other things, Vasquez was charged with felony unlawful taking of a vehicle (Veh. Code, § 10851); felony vandalism (Pen. Code, § 594); 1 and misdemeanor battery (§ 243, subd. (e)(1)). The jury convicted Vasquez of all three crimes.2 Vasquez was sentenced on October 6, 2011. The trial court imposed the upper term sentence of three years on the unlawful taking count, followed by a consecutive eight months term (one-third the two-year midterm) on the vandalism count. Citing section 654, the court stayed the concurrent, 180-day sentence it imposed on the misdemeanor. The court ordered Vasquez to serve his time in the county jail rather than state prison. (§ 1170, subd. (h)(3).) The court awarded Vasquez 235 days of presentence credits for the time he actually spent in local custody and 116 days of conduct credits. The court applied a formula that awarded one day of conduct credit for every two days of actual custody. DISCUSSION I. Calculation of Presentence Conduct Credits Vasquez argues that the trial court erred in awarding him only one day of conduct credit for each two days of actual custody time. Vasquez asserts that the trial court's resort to this rate was dictated by the Realignment Act of 2011 (Act). Because he would have received twice as many conduct credits under pre-Act law, and because the Act was enacted after he committed his crimes, Vasquez contends that the Act constitutes an unconstitutional ex post facto law and otherwise violates equal protection.