Trial Court: Monterey County Superior Court Trial Judge: Hon. Pamela L. Butler Super. Ct. No. SS110504A
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
In October 2011, appellant Stephen Kennedy pleaded no contest to assault by force likely to cause great bodily injury. (Pen. Code, § 245, sud. (a)(1).) Appellant admitted a prior strike allegation. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) In exchange for his no contest plea, appellant was promised a four year prison term.
On November 17, 2011, the court sentenced appellant to four years in state prison. The court awarded appellant only 21 days of custody credits consisting of 15 actual days and six days conduct credit.
Appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea.
On appeal, appellant contends that he is entitled to additional presentence custody credits, and pursuant to equal protection principles the amendment to Penal Code section 4019, effective October 1, 2011, must be applied to him retroactively. By way of a supplemental opening brief, appellant argues that he is statutorily entitled to increased presentence conduct credits for the time he spent in custody after October 1, 2011.
For reasons that follow, we agree that appellant is entitled to additional presentence custody credits, but disagree that he is entitled to have the amendment to Penal Code section 4019 that took effect on October 1, 2011, applied in calculating his conduct credits.
Facts and Proceedings Below
Since appellant's claims on appeal concern presentence custody credits, it is not necessary to give a detailed recitation of the facts underlying his most recent conviction. Rather, we note that on March 11, 2011, appellant, a recent parolee, punched and choked his grandmother. Then, he threatened to kill her with a knife if she told the police. As a result, appellant was charged by way of an information with one count of attempted premeditated murder (Pen. Code, §§ 187, 664, count one), assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(1), count two), elder abuse (Pen. Code, § 368, subd. (b)(1), count three), and criminal threats (Pen. Code, § 422, count four).*fn1 The information contained allegations that appellant had served six prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and had suffered two prior "strike" convictions within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12.
As noted, appellant entered a plea of no contest to assault by force likely to cause great bodily injury (Pen. Code, § 245, sud. (a)(1)), and admitted one prior strike allegation. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
In preparation for sentencing, on November 1, 2011, the Monterey County Probation Department filed a sentencing memorandum in which it was noted that appellant had been in the Monterey County Jail continuously from March 11, 2011. However, the probation department did not recommend awarding appellant any credit for time served even though he had been in custody for 236 days. The probation department's conclusion that appellant was not entitled to any custody credit was based on information supplied by appellant's parole agent. Specifically, "According to Parole Agent Saldana, Parole Records reflect that in addition to the instant charges, the defendant was arrested on an independent technical parole violation that he possessed/used alcohol, which would have resulted in immediate parole revocation with immediate confinement at the Monterey County Jail. As the defendant's arrest was independent of the new charges in the instant offense, it was not the sole basis of the violation of parole. Following his arrest for the instant case, a parole violation hold, filed pursuant to § 3065 PC, was placed upon the defendant at the Monterey County Jail. Therefore, pursuant to People v. Bruner (1995) 9 Cal.4th 1178 . . . People v. Shabazz (2003) 107 Cal.App.4th 1255 . . . the defendant is not entitled to receive custody credit in the instant case as this offense was not the sole basis of his violation of parole."
Appellant filed a motion asking the trial court to award him presentence credits under Penal Code section 2900.5. The People opposed the motion. At appellant's sentencing hearing, on November 17, 2011, the trial court denied appellant's motion for custody credits for the entire period that he was incarcerated in the Monterey County Jail, but as noted, did award him 15 actual days credit for time served and six days conduct credit.*fn2
Custody Credits and the Parole Violation
Appellant contends that he is entitled to additional custody credits. Appellant bases this contention on the following:
He was arrested on March 11, 2011, in the criminal case and for violating his parole. On March 15, 2011, the Monterey County District Attorney filed a criminal complaint against appellant; he was arraigned on the complaint the same day.
Immediately, a parole hold was placed on appellant for the crimes leading to the criminal prosecution and for among other things possessing or using alcohol; according to the officer that arrested him, appellant smelled of alcohol when he was arrested. Appellant signed what is known as an "optional waiver" on March 23, 2011.
The California Code of Regulations explains the optional waiver as follows: "A parolee who is undergoing criminal prosecution may conditionally waive the revocation hearing, but retain the option to request a hearing as provided in this subsection. Upon receipt of a signed optional waiver, the Board at the central calendar office will determine whether there is good cause to revoke parole. This determination will be made without a hearing or personal appearance by the parolee. [¶] If the Board orders parole revoked and the parolee returned to custody, the parolee then may request a revocation hearing. A hearing request must be received by the Board no more than 15 days following sentencing or final disposition at the trial court level in the criminal proceedings and no later than two months before expiration of the revocation period ordered by the Board at the ...