IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 14, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ISAAC SCOTT, DEFENDANT AND APPELLANT.
(Monterey County Super. Ct. No. SS082887A)
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
P. v. Scott
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Isaac Scott was convicted after court trial of misdemeanor assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),*fn1 and misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)). On February 1, 2010, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve a 40-day jail term with six actual days credit. Defendant's sole contention on appeal is that he is entitled to additional custody credits under the version of section 4019 in effect on his date of sentencing. In response to our request for supplemental briefing, defendant informed us that he had requested and been granted the presentence credits he sought by the trial court. We will therefore dismiss the appeal as moot.
Defendant was arrested for felony assault with a deadly weapon (§ 245, subd. (a)(1)) on November 28, 2008, and remained in custody until he made bail on December 3, 2008. He was charged by information filed April 8, 2009, with one count of felony assault with a deadly weapon, a vehicle. On June 4, 2009, the information was orally amended to charge a misdemeanor assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) in count 1 and to add a charge of misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)) in count 2. Defendant then waived his right to a jury trial. The court trial was held on January 28, 2010.
The Trial Evidence
In the early afternoon of Friday, November 28, 2008, Robert Meadows was driving north on Highway 101 when he witnessed a two-vehicle collision north of Salinas. One of the vehicles involved in the collision was a Ford Explorer that Meadows had followed since King City. About five miles south of the collision, a black Volvo erratically came up behind Meadows and stayed close to his rear bumper while he was in the left lane. After Meadows passed a car that was in the right lane, the Volvo sped up, swerved into the right lane a few feet in front of the passed car, and passed both Meadows and the Explorer on the right. The Volvo then returned to the left lane and its brake lights came on. The Explorer's brake lights also came on, and it moved over to the right lane. Meadows dropped back. The Volvo accelerated and pulled away from the Explorer and Meadows until it was slowed by a silver car in front of it. The Explorer caught up to and passed the Volvo on the right. The silver car moved over into the right lane and the Explorer's turn signal came on. When the Explorer was halfway into the left lane, the Volvo sped up, veered to the left over the line, then swerved back to the right and hit the rear quarter panel of the Explorer. The Explorer went into a spin, hit the center barrier, and spun around in a circle two times.
California Highway Patrol (CHP) Officer Jason Ivy investigated the November 2008 collision. The Volvo sustained right front fender damage and the Explorer sustained left rear damage. Defendant was the driver of the Volvo. A Mr. Brown was the driver of the Explorer. Defendant appeared to be enraged when the officer spoke to him. When defendant was asked if he purposefully steered his car into the Explorer, defendant said, "I did." After Officer Ivy spoke to Brown, he placed Brown under arrest for driving under the influence of alcohol.
William Carneal, a traffic accident reconstructionist, testified on behalf of defendant that he visited the scene of the accident on December 4, 2008. Based on Carneal's investigation, he determined that the area of impact between the Volvo and the Explorer was in the left lane when the Explorer was approximately three or four feet over the lane dividing line. Carneal also determined that the Explorer was moving faster than the Volvo and to the left at the time of the collision. After the collision, the Explorer skidded out of control to the left. The Volvo sustained damage to its right front quarter panel consistent with it having been side-swiped by the Explorer. Thus, in Carneal's opinion, the physical evidence does not corroborate Meadows's version of the collision.
Defendant testified in his own defense that he was driving a Volvo northbound on Highway 101 around 2:45 p.m. on November 28, 2008. He was in the right lane when he passed a car that was behind the Explorer. As he tried to pass the Explorer, he caught up to within six feet of the car in front of him and had to slow down. When he did, the Explorer also slowed down. Defendant accelerated, turned on his turn signal, moved over in front of the Explorer and pulled away. The Explorer then accelerated, moved over to the right lane, and started to pass defendant. A car that had been in the left lane in front of defendant moved over into the right lane. The Explorer did not slow down, but swerved into the left lane. Defendant stepped on the brake and turned to the right in an attempt to avoid hitting either defendant or the center divider. He has no recollection of swerving left before turning to the right. He did not intend to hit the Explorer. The Explorer side-swiped the front of defendant's car and began to spin. Defendant was able to come to a controlled stop. When the CHP officer asked him if he had purposefully steered his car into the Explorer, he said that he had not.
The Verdicts and Sentencing
On February 1, 2010, the court found defendant guilty of both misdemeanor charges, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and reckless driving (Veh. Code, § 23103, subd. (a)). Defendant submitted some letters on his behalf and requested that he be sentenced immediately. The court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve a 40-day jail term with six actual days credit.
Prior to January 25, 2010, a criminal defendant could accrue conduct credit at a rate of two days for every four-day period of actual presentence custody. (Former § 4019, subds. (b), (c) & (f); Stats. 1982, ch. 1234, § 7, p. 4553; People v. Dieck (2009) 46 Cal.4th 934, 939.) "A defendant who spen[t] at least four days in presentence custody [was] entitled to conduct credit under [former] section 4019 if that defendant [was] sentenced or otherwise 'committed' . . . for a period of at least six days, assuming he or she satisfie[d] the eligibility criteria set forth in the statute." (Dieck, supra, at p. 940; see former § 4019, subd. (e).) The conduct credit was calculated by taking the number of actual custody days, divided by four (and discarding any remainder), and multiplying that result by two. The conduct credit was then added to the actual days of custody to arrive at the total custody credit. (In re Marquez (2003) 30 Cal.4th 14, 26; People v. Smith (1989) 211 Cal.App.3d 523, 527 (Smith).)
Section 4019 was amended effective January 25, 2010, to increase the amount of presentence conduct credit that may be granted to certain offenders. As so amended, section 4019 provided for conduct credit of two days for every two-day period of actual presentence custody for eligible defendants. (Former § 4019; Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Thus, a defendant who spent at least two days in presentence custody was entitled to conduct credit under this version of section 4019 if that defendant was sentenced or otherwise committed for a period of at least four days, assuming he or she satisfied the eligibility criteria set forth in the amended statute. (Id. at subd. (e); see Dieck, supra, 46 Cal.4th at p. 940.) Effective September 28, 2010, section 4019 was returned to its wording prior to January 25, 2010. (Stats. 2010, ch. 426, § 1.)
On appeal, defendant contended that since he was sentenced after January 25, 2010 (and before September 28, 2010), he is entitled to two days presentence custody credit for every two days he actually served. Defendant argued that he spent six days in presentence custody, he was committed to jail for 40 days as a condition of probation, and he otherwise satisfied the eligibility criteria set forth in the statute. Thus, he argued that under the Smith formula (Smith, supra, 211 Cal.App.3d at p. 527), if you divide his actual days in custody (six) by two and then multiply that result (three) by two, you find that he was entitled to six days of conduct credit which should be added to his six actual days in custody to arrive at a total presentence custody credit of 12 days.
The Attorney General contended that defendant waived any claim of error when he "accepted the [sentencing] deal" under which he was granted probation. No citation of authority was given for this contention. Alternatively, the Attorney General contended that, at most, defendant was entitled to two days of credit for every four days he served under the pre-amended version of section 4019, because defendant's time in custody occurred prior to the amendment.
Defendant's reply brief was filed August 25, 2010. On October 29, 2010, we asked the parties to file supplemental briefs addressing the following question: "As Penal Code section 1237.1 bars a defendant from taking an appeal as to the miscalculation of presentence custody credits unless he has first presented the claim to the superior court, is this court required to decline to address defendant's sole issue on appeal? (See People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.)"*fn2 In his response filed November 8, 2010, defendant informed the court that on October 19, 2010, he had filed a motion in the superior court requesting that he be granted the six days of conduct credit at issue in the appeal. On October 26, 2010, the superior court granted the motion and awarded him a total of 14 days presentence custody credit. Defendant therefore requested that this court dismiss his appeal as moot.*fn3 We agree that the appeal is moot and that dismissal of the appeal is appropriate.
The appeal is dismissed as moot.
WE CONCUR: MCADAMS, J. duffy, J.