P. v. Schlaick CA6

Filed 6/27/13 P. v. Schlaick CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038758 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS082642A, SS082998A) v.

MICHAEL WILLIAM SCHLAICK,

Defendant and Appellant.

INTRODUCTION Defendant Michael William Schlaick appeals from post-judgment orders denying his motion for additional presentence conduct credit under Penal Code section 4019.1 For reasons that we will explain, we will affirm the orders. FACTUAL AND PROCEDURAL BACKGROUND2 In July 2011, in case No. SS082642A, defendant pleaded no contest to one count of commercial burglary (§ 459) and pleaded guilty to one count of commercial burglary.

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 Defendant’s convictions in case Nos. SS082642A and SS082998A were the subject of his appeal in our case No. H037426. This court ultimately dismissed the appeal pursuant to defendant’s request. In his opening brief in the instant appeal, defendant indicates that he “has moved” for judicial notice of the record from the prior appeal. No such motion has been filed in this court. On the court’s own motion, the court takes judicial notice of the record in defendant’s prior appeal, case No. H037426. (Evid. Code, § 452, subd. (d)(1).) Some of the factual and procedural background is taken from that record.

The offenses took place on or about September 5, 2008. Defendant also admitted that he had a prior strike (§ 1170.12, subd. (c)(1)) and that he had served two prior prison terms (§ 667.5, subd. (b)). In case No. SS082998A, defendant pleaded no contest to commercial burglary. The offense took place on or about September 13, 2008. Defendant also admitted that he had a prior strike (§ 1170.12, subd. (c)(1)). Defendant entered the pleas and admissions in both cases with the understanding that his maximum sentence would be 10 years eight months. On September 20, 2011, the trial court sentenced defendant to a total term of seven years four months in prison for both cases. Regarding presentence custody credits, in case No. SS082998A, the court granted defendant 879 days of custody credits, consisting of 587 actual days plus 292 days conduct credit. No custody credits were awarded in case No. SS082642A. In August 2012, defendant filed a motion in both cases seeking additional presentence conduct credit under the October 2011 version of section 4019. Defendant contended that this version of section 4019 applied to him based on state and federal equal protection principles. The trial court denied the motion as to both cases. Defendant filed a notice of appeal from the orders. DISCUSSION Defendant contends that his conduct credit should be calculated pursuant to the current version of section 4019, which was operative after he was sentenced in September 2011, and that, under the current version, he is entitled to 586 days conduct credit rather than the 292 days granted by the trial court in case No. SS082998A. Although he acknowledges that the current version of section 4019 “provides that it is applicable solely to cases where the offenses were committed on or after October 1, 2011,” defendant contends that the equal protection clause of the federal Constitution requires that the current version be applied to him. Defendant acknowledges that his argument has been rejected by the California Supreme Court in People v. Lara (2012)