P. v. Hatch CA1/2

Filed 6/20/13 P. v. Hatch CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A137067 v. MELVIN JAMES HATCH, (Napa County Super. Ct. No. CR157565) Defendant and Appellant.

Defendant committed his crime in June 2011, and on July 18, 2012, pleaded no contest to second degree commercial burglary (Pen. Code, § 459),1 and petty theft with a prior (§ 666). He also admitted that he had served five prior prison terms (§ 667.5, subd. (b)), and that he had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Subsequently, the trial court granted defendant’s Romero motion as to his two strikes, and sentenced defendant to prison for six years. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court granted defendant presentence credits based on the version of section 4019 in effect when he committed his crime. On appeal, defendant contends that he is entitled to additional presentence conduct credits. He claims that the trial court correctly calculated his conduct credits under the former version of section 4019 for the period of June 2011 until

1 All further unspecified code sections refer to the Penal Code.

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September 30, 2011, but that it should have calculated his conduct credits including and after October 1, 2011, under the current version of section 4019. We reject defendant’s argument but conclude that the trial court’s calculation of presentence custody credit is incorrect, and modify the judgment to increase his presentence custody credit from 251 to 255 days. BACKGROUND On August 2, 2011, an information was filed charging defendant with second degree commercial burglary (§ 459), and petty theft with a prior (§ 666). The information also alleged that defendant had served five prior prison terms (§ 667.5, subd. (b)), and that he had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Defendant, as stated in the police report, took a basket of groceries from a grocery store without paying for them on June 28, 2011. When apprehended a short time later, he could not pay for the groceries. On July 18, 2012, pursuant to a negotiated disposition, defendant pleaded no contest to the charged burglary and petty theft, and admitted serving four prior prison terms and suffering two strike convictions. On November 6, 2012, the trial court denied probation. The court granted defendant’s Romero motion as to his two strikes. The trial court sentenced defendant to state prison for a total term of six years. At the hearing, the court stated it was awarding defendant a total of 251 days of credit for his presentence custody, which included 171 days of actual time served, and an additional 80 days of conduct credit. The abstract of judgment states that defendant was awarded 256 days of credit, consisting of 171 actual days and 85 days of conduct credit. Defendant filed a timely notice of appeal. DISCUSSION Section 4019 governs conduct credits. Before January 25, 2010, subdivisions (b) and (c) of section 4019 provided that for “each six-day period in