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The People v. Larry Stephan Carmean

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)


November 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LARRY STEPHAN CARMEAN, DEFENDANT AND APPELLANT.

(Super. Ct. No. P10CRF0044)

The opinion of the court was delivered by: Raye , P. J.

P. v. Carmean CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Larry Stephan Carmean was convicted of two counts of grand theft and sentenced to prison. His sole contention on appeal is that he is entitled to enhanced conduct credits against his state prison sentence. The People concede the error and we agree.

Defendant's crimes were committed in 2008; he was convicted by plea on September 29, 2010, and was sentenced on January 31, 2011.*fn1

At the time of defendant's offenses, former Penal Code section 4019*fn2 provided, among other things, that "[w]hen a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence," he is entitled to one day of work credit and one day of conduct credit for each six-day period of confinement. (§ 4019, former subds. (a)(2), (b), (c); see Stats. 1982, ch. 1234, § 7, p. 4553.)

Effective January 25, 2010, Senate Bill No. 18 amended section 4019 to provide for the accrual of presentence credits at twice the previous rate. New subdivisions (b)(1) and (c)(1) of section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), "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 . . . ." (§ 4019, subd. (f); see also Stats. 2009, ch. 28, § 50.)

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Stats. 2010, ch. 426, § 1), which amended section 2933 regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (§ 2933, subd. (e)(1), (2), (3).) Neither defendant's current conviction nor his criminal record disqualify him from the new formula. (§ 4019, subds. (b) & (c).)

Notwithstanding written presentence briefing by defense counsel on the effect of these amendments and argument by defense counsel at sentencing, the trial court awarded defendant 362 days' actual credit and only 180 days' presentence conduct credit.

This was error. We therefore order the judgment modified to award defendant an additional 182 days of presentence conduct credit, for a total of 724 days of presentence credit (362 days' actual, plus 362 days' conduct credit).

DISPOSITION

The judgment is modified to award presentence credit consisting of 362 days' actual custody time, plus 362 days' presentence conduct credit, for a total of 724 days' presentence credit. The judgment as thus modified is affirmed. The trial court is directed to enter a new sentencing order awarding defendant an additional 182 days' presentence conduct credit, for a total of 724 days' presentence credit (362 days' actual plus 362 days' conduct credit), and to amend the abstract of judgment accordingly.

The trial court is also directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: ROBIE , J. DUARTE , J.


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