IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 26, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SEAN MICHAEL BLACKWELL, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 10F04519 & 05F07036)
The opinion of the court was delivered by: Blease , J.
P. v. Blackwell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Sean Blackwell was placed on probation in 2005 after entering a plea to one count of second degree robbery, a violent offense pursuant to Penal Code section 667.5, subdivision (c)(9).*fn1 Defendant's probation was revoked in 2010, when he was arrested and pleaded guilty to possession of cocaine base for sale. Defendant served two different periods of confinement in county jail following arrest and prior to placement in the custody of the Department of Corrections and Rehabilitation. The first period was attributable to the robbery, and the second period was following his arrest on the drug related charges.
When defendant was sentenced to concurrent terms for both offenses in 2010, the trial court limited his accrual of conduct or worktime credits for both periods of presentence confinement to 15 percent, pursuant to section 2933.1, subdivision (c). That section limits the credits that may be awarded for "any person who is convicted of a [violent] felony offense[.]"
Defendant argues his presentence conduct credits for his period of confinement following his arrest on drug charges should not have been limited to 15 percent because the possession for sale charge to which he pled guilty was not a violent offense.
We shall conclude that the trial court properly limited defendant's credits because defendant was a person described by section 2933.1 when his sentence was imposed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant entered a plea of nolo contendere to one charge of second degree robbery in 2005. The trial court imposed a three year prison term and suspended execution of the sentence for a period of five years during which defendant was placed on formal probation. The trial court ordered defendant to serve 360 days in county jail.
In April 2010, defendant's grant of probation was revoked due to a misdemeanor conviction. Shortly thereafter the court reinstated probation and extended it an additional two years.
Defendant was arrested on July 9, 2010, and charged with violating Health & Safety Code sections 11351.5, 11352 and 11379.6, subdivision (a), based upon defendant's possession of 13.34 grams of cocaine on his person and the discovery of various paraphernalia indicating that such possession was for sale. On July 13, 2010, probation was again revoked and defendant was remanded to custody without bail.
Defendant entered a plea of guilty to possession of cocaine base for sale and admitted his prior robbery strike. (Health & Saf. Code, § 11351.5.) The trial court sentenced defendant to six years in prison on the possession charge, and to a concurrent three year term in the earlier robbery case.
Pursuant to section 2933.1, which provides that the maximum credit that a defendant may earn shall not exceed 15 percent of the actual period of confinement for any person who is convicted of a specified violent felony offense, the trial court imposed a 15 percent limit on the number of conduct or worktime credits it awarded defendant for the time defendant was in jail as a result of the robbery case, as well as the time he spent in jail after being arrested in the drug possession case and prior to sentencing. Defendant's conviction for robbery qualified as a violent felony offense under section 2933.1, but his conviction for possession of cocaine base for sale did not.
Defendant argues he should have been awarded full conduct or worktime credit for the time he spent in custody after being arrested for possessing cocaine. He acknowledges that his presentence credits for the time spent in jail on the robbery conviction were properly limited to 15 percent, but argues that because the second conviction was for a nonviolent offense, the trial court improperly limited his presentence credits for that case.
The operative statute is subdivision (c) of section 2933.1. It states in pertinent part: "Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, . . . a county jail, . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)." A "person specified in subdivision (a)[,]" is "any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5[.]" For purposes of this case, section 667.5 describes violent felonies, and includes robbery, but does not include possession of cocaine for sale.
Accordingly, the maximum presentence conduct credit that may be earned by a person who is convicted of a violent felony is limited to 15 percent of the actual period of confinement. The question is whether defendant qualified as a person who "is convicted of a [violent] felony[,]" when the court awarded conduct credits. We conclude he did so qualify.
Defendant recognizes that the 15 percent limitation has been applied in single cases involving both violent and nonviolent felony convictions. "[S]section 2933.1 has repeatedly been held to impose a 15 percent limitation on presentence credits against any part of the sentence of a defendant convicted of a violent felony, including terms imposed for additional offenses which are not violent felonies." (People v. McNamee (2002) 96 Cal.App.4th 66, 73, citing People v. Ramos (1996) 50 Cal.App.4th 810, 817; People v. Palacios (1997) 56 Cal.App.4th 252, 255-256; and People v. Duran (1998) 67 Cal.App.4th 267, 270.) The cases cited in People v. McNamee, supra, differ from the case before us in that all of the offenses for which the defendants were being sentenced were charged in the same case. Here, defendant's violent offense occurred several years prior to the nonviolent offense, and defendant had already pleaded guilty to that offense.
Defendant also recognizes that the 15 percent limitation has been applied in separate cases if the violent felony is the latter offense and the sentences are consecutive. In a case ordered published by the California Supreme Court, the First District Court of Appeal held that the 15 percent credit limitation applied to all periods of presentence confinement where a defendant first pled guilty to a nonviolent offense and was granted probation including a county jail term, then later committed a violent felony for which he was convicted and received a consecutive sentence. (People v. Baker (2002) 144 Cal.App.4th 1320.) The defendant in Baker argued that the 15 percent limitation should not have applied to the presentence credits that accrued on the nonviolent felony, since he committed the violent felony more than a year after serving the presentence jail time on the nonviolent felony. (Id. at p. 1327.)
The court stated that even though the violent and nonviolent felony convictions were not brought and tried in the same proceeding, the 15 percent cap would apply as long as the current charge was for a violent felony. (Baker, supra, 144 Cal.App.4th at p. 1328.) This court came to the same conclusion as Baker, supra, under similar facts. (People v. Marichalar (2003) 144 Cal.App.4th 1331.) These cases differ from the one before us because here, the current felony is the nonviolent felony, and the sentence imposed was concurrent, not consecutive.
People v. Nunez (2008) 167 Cal.App.4th 761, applied the 15 percent limit to presentence credits under nearly identical circumstances. In that case the appellant, Nunez, first pleaded guilty to robbery, for which he was placed on probation for three years and for which he was in custody for 90 days. (Id. at p. 763-764.) He was later arrested for unlawful driving and held in custody. (Id. at p. 764.) The trial court terminated Nunez's probation and sentenced him to concurrent sentences for the robbery and unlawful driving. (Ibid.) The trial court awarded presentence conduct credit in an amount equal to 15 percent of the days served for each of the two periods Nunez spent in custody. (Ibid.)
Nunez argued on appeal that the trial court erred by limiting his presentence conduct credits for his unlawful driving sentence to 15 percent of the actual time served. (Nunez, supra, 167 Cal.App.4th at p. 764.) The court of appeal affirmed the 15 percent limit, reasoning that the 15 percent cap applies to the offender, not the offense. (Id. at pp. 765, 768.)
Defendant argues Nunez, supra, was wrongly decided. He argues that the cases holding that the 15 percent cap applies to the offender rather than the offense, are distinguishable because they involved a single case resulting in convictions on both violent and non violent charges. He claims the rule is not applicable when, as here, defendant was sentenced in two separate cases where only one involved a violent felony.
We conclude that the language of the statute operates in this case to limit defendant's presentence conduct credit to 15 percent. The holding in Nunez, supra, supports this conclusion. The statement in Nunez, that the 15 percent cap applies to the offender, not the offense (167 Cal.App.4th at p. 765) was simply a recognition that the language of the statute is descriptive of the offender, and is not specific to the offense.
The statute limits the amount of credits that may be awarded to "any person who is convicted of a [violent] felony offense . . . ." Defendant is a person who "is convicted" of a violent felony offense because he has been convicted, but has not yet served the sentence for that conviction. The defendant was ordered to serve the sentence for the violent felony in the same sentencing proceeding in which he was sentenced for the nonviolent offense. As such, the violent felony is a current conviction for which he has not yet served a prison sentence, and he is in no different position for purposes of the limitation than a person who is sentenced for violent and nonviolent felonies in the same case.
The judgment is affirmed.
We concur: RAYE , P. J. HOCH , J.