P. v. Hale CA6

Filed 5/30/13 P. v. Hale CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H037877 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1079349)

v.

JAMES A. HALE,

Defendant and Appellant.

INTRODUCTION In September 2011, defendant James A. Hale pleaded guilty to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)),1 fraudulent use of an access card (§§ 484g, subd. (a), 487), possessing a forged driver’s license (§ 470b), using personal identifying information without authorization (§ 530.5, subd. (a)), false personation (§ 529), and misdemeanor falsely identifying himself to a peace officer (§ 148.9). The offenses took place on or about June 8, 2010. Defendant also admitted that he had a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)). In December 2011, the trial court denied defendant’s Romero motion2 and sentenced him to prison for six years. The court granted defendant 835 days of custody credits, consisting of 557 actual days plus 278 days conduct credit.

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

On appeal, defendant contends that he is entitled to additional presentence conduct credit pursuant to the version of section 4019 operative October 1, 2011. For reasons that we will explain, we will affirm the judgment. BACKGROUND In 2010, defendant was charged by information with second degree burglary (§§ 459, 460, subd. (b); count 1), fraudulent use of an access card (§§ 484g, subd. (a), 487; count 2), possessing a forged driver’s license (§ 470b; count 3), using personal identifying information without authorization (§ 530.5, subd. (a); count 4), false personation (§ 529; count 5), and misdemeanor falsely identifying himself to a peace officer (§ 148.9; count 6). The offenses allegedly took place on or about June 8, 2010. The information further alleged that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served five prior prison terms (§ 667.5, subd. (b)). In September 2011, defendant pleaded guilty to all counts and admitted the prior strike allegation and four prior prison term allegations. The remaining prior prison term allegation was stricken on motion of the People. Defendant entered his pleas and admissions with the understanding that he would receive a “six year sentence top” and that he could bring a Romero motion. Defendant thereafter filed a Romero motion, requesting that the trial court strike his strike. The People filed opposition to the motion. On December 16, 2011, the court denied the motion and sentenced defendant to prison for six years. The sentence consists of four years (double the middle term) on count 1, and concurrent terms of four years (double the middle term) each on counts 2 through 4, plus consecutive terms of one year each for two prison priors. The court stayed the term on count 5 pursuant to section 654, and struck the punishment for the two remaining prison priors. The court granted defendant 835 days of custody credits, consisting of 557 actual days plus 278 days conduct credit. Regarding count 6, the court imposed a one-year jail term, which was deemed satisfied by credit for time served.