Trial Court: Santa Clara County Superior Court No.: 211361 Trial Judge: The Honorable Gilbert T. Brown (Santa Clara County Super. Ct. No. 211361)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Defendant Christopher Olague was sentenced to state prison after pleading guilty to a charge of conspiracy to sell methamphetamine. On appeal he contends that (1) the court should have stricken, rather than stayed, a sentence enhancement under Penal Code section 667.5 (§ 667.5) for having served a prior prison term, and (2) he is entitled to an additional 370 days of presentence custody credits under post-conviction amendments to the governing statute. Respondent concedes the first point, and we will direct a corresponding amendment to the judgment. In all other respects we will affirm.
On December 4, 2008, the grand jury of Santa Clara County presented a 42-count indictment alleging that defendant and 19 others committed numerous gang-related offenses. Defendant was named only in the first two counts, which charged participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and conspiracy to sell methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379, subd. (a)). It was further alleged as an enhancement that he had committed the offense to promote criminal gang conduct. (Pen. Code, § 186.22, subd. (b)(1)(A).) Also charged were four enhancements arising from a single previous robbery conviction: a doubling of the base term (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)); an additional five years for being convicted of a serious felony with a serious-felony prior (id., §§ 667, subd. (a)); an additional three years for being sentenced on a violent felony after serving a prior prison term for a violent felony (id., § 667.5, subd. (a)); and an additional one year for being sentenced to prison after serving a prior prison term (id., § 667.5, subd. (b)).
During jury selection, defendant changed his plea on the second count to no contest pursuant to an agreement under which he would receive a sentence of nine years in prison and would be permitted to bring a motion to strike his strike prior so as to earn credit in state prison at the rate applicable to strike-free inmates. The prosecutor described the agreement as contemplating, in relevant part, defendant's admission of the gang enhancement as well as "his strike prior, his Prop 8 prior, and his two prison priors." Defense counsel took exception to the last phrase, stating, "I do believe Mr. Olague has a single prison prior." The prosecutor agreed "that there's only one prison prior alleged as to Mr. Olague."
Defendant brought a motion to strike the strike prior, which the trial court denied. On February 28, 2011, the court imposed a sentence of nine years, consisting of four years on the conspiracy charge and five years under Penal Code section 667, subdivision (a). In addition the court imposed, but stayed, an enhancement under Penal Code section 667.5, subdivision (b). The court allowed credit for presentence confinement of 718 days actual custody plus 358 days conduct credit.
Defendant brought this timely appeal limited to "the sentence or other matters occurring after the plea that do not affect the validity of the plea." (See Cal. Rules of Court, rule 8.304(b).)
Citing People v. Jones (1993) 5 Cal.4th 1142, 1152-1153, defendant contends that the sentence enhancement under Penal Code section 667.5, subdivision (b), should have been stricken rather than stayed. That was indeed the procedure prescribed there where enhancements were charged, based on the same prior conviction, both for the conviction itself and for a prison sentence served pursuant to it. Respondent concedes the error, and the concession is well taken. (See People v. Perez (2011) 195 Cal.App.4th 801, 805.) Accordingly, we will direct an amendment of the judgment to strike the challenged enhancement.
In a supplemental brief defendant seeks the benefit of amendments to Penal Code sections 4019 and 2933 which had the effect of increasing conduct credit for presentence confinement with respect to persons convicted of serious or violent felonies. He acknowledges that under the law in effect at the time of sentencing, he was "only entitled to six day's credit for every four days served." This was because, while defendants generally were entitled to one day of conduct credit for every day actually served (i.e., two days total credit per day served), those who had sustained prior convictions for serious felonies--as defendant had--were limited to two days conduct credit for four days actually served (six days total credit for each four days served). (Former Pen. Code, §§ 2933, subd. (e)(3), 4019, subd. (f), as enacted by Stats. 2009 3d Ext. Sess., ch. 28, §§ 38, 50.) On October 1, 2011, however--seven months after he was sentenced--this disqualification was eliminated, so that persons like defendant, who had prior serious felony convictions but were not presently being sentenced for a serious felony, would earn presentence confinement credits at the higher one-for-one rate. (Pen. Code, §§ 2933, subd. (e), 4019, subd. (f), as enacted by Stats. 2011, 1st Ex. Sess., ch. 12, §§ 16, 35.) Defendant contends that this formula must be applied to him, entitling him to an additional 360 days credit.
There is no question that the result sought by defendant is contrary to the express language of the amending statute, which declares that the amendments "shall apply prospectively and . . . to prisoners who are confined . . . for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. (h).) As discussed below, some ambiguity appears in this language as applicable to persons in presentence custody after October 1, 2011, on crimes committed before that date. But no ambiguity appears with respect to persons sentenced before ...