P. v. Koontz CA2/6

Filed 7/3/13 P. v. Koontz CA2/6 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B224697 2d Crim. No. B224701 Plaintiff and Respondent, (Super. Ct. No. 2009029278 ) (Super. Ct. No. 2009002554) v. (Ventura County) ON REMAND TREVOR LEE KOONTZ,

Defendant and Appellant.

This case is before us on remand from the California Supreme Court to reconsider the cause in light of People v. Brown (2012) 54 Cal.4th 314 and People v. Lara (2012) 54 Cal.4th 896. (Cal. Rules of Court, rule 8.528(d). Having read and considered the supplemental briefs, we vacate our prior decision and conclude that appellant is not entitled to enhanced conduct credits under former Penal Code section 4019 which was in effect on January 25, 2010.1 (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.) Facts and Procedural History In exchange for an indicated three-year sentence, Trevor Lee Koontz pled guilty in case number 2009029278 to felony child endangerment (Pen. Code, § 273a, subd. (a)), and admitted a prior serious felony conviction (§§ 667, subds. (a)(1) & (e)(1); 1170.12,

1 All statutory references are to the Penal Code unless otherwise stated.

subds. (a)(1) & (c)(1)) and admitted suffering two prior prison terms (§ 667.5, subd. (b)). The trial court struck the prior serious felony conviction and a prior prison term. On March 16, 2010, it sentenced appellant to three years state prison. The court awarded 219 days actual credit plus 108 days conduct credit (§ 4019, subds. (b)(2) & (c)(2)) but ruled that appellant was not eligible to receive one-for-one conduct credits (an additional 108 days conduct credit) due to the prior serious felony strike conviction.2 Appellant argued that the order striking the prior conviction entitled him to "one-for-one credits under PC 4019, as it's currently written." Denying the request, the trial court stated: "I did take a look at the Code section [§ 4019] again. If it satisfies you, I will confess . . . that it continues to be subject to interpretation . . . , but that's how I read the Code, sir." Former Section 4019 Effective January 25, 2010, section 4019 was amended to provide that certain defendants may earn presentence credit at the rate of two days for every two days in custody, commonly referred to as "one-for-one credits." The Legislature said: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (a) of subdivision (b) or (c)." Thereafter on September 28, 2010, the Legislature deleted "one-for-one credits." (See People v. Brown, supra, 54 Cal.4th at p. 318, fn. 3 [discussing legislative history].) In People v. Brown, supra, 54 Cal.4th 314, our Supreme Court concluded that the January 25, 2010 version of section 4019 only applies to time in custody after its