APPEAL from a judgment of the Superior Court of Los Angeles County, Fred N. Wapner, Judge. (Los Angeles County Super. Ct. No. BA371988)
The opinion of the court was delivered by: Turner, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed as modified with directions.
A jury convicted defendant, Paul Garcia, of making criminal threats (Pen. Code,*fn2 § 422), a serious felony. (§ 1192.7, subd. (c)(38).) Defendant made the criminal threats on May 28, 2010. The trial court found defendant had sustained one prior serious felony conviction. (§ 667, subd. (a)(1).) Defendant was sentenced to 6 years, 4 months in state prison. Defendant was sentenced on January 26, 2011.
Defendant was in presentence custody for 244 days from May 28, 2010, to January 26, 2011. Prisoners in local presentence custody earn credit against their state prison terms for good conduct and agreeing to performing labor as directed by the sheriff. (People v. Brown (2012) 54 Cal.4th 314, 317; People v. Austin (1981) 30 Cal.3d 155, 163.) Over the past several decades, computing presentence conduct credits has been a fairly straight-forward, albeit sometimes taxing, ministerial duty. But between October 11, 2009, and September 20, 2011, Governors Arnold Schwarzenegger or Edmund G. Brown, Jr., signed five legislative bills which concern the calculation of presentence conduct credits. These five legislative bills have made calculating presentence conduct credits a potentially complex undertaking. And, trial courts throughout California have been deluged with motions, habeas corpus petitions and hand scrawled or typewritten (on actual typewriters) letters from inmates seeking additional presentence conduct credits.
In the published portion of this opinion, we will describe how those five legislative bills apply to this case. Because of the interplay between various bills and the dates of the commission of different offenses, there are a wide ranging number of presentence conduct credit calculation scenarios. We will only resolve the case before us--a May 28, 2010 offense and a January 26, 2011 sentencing. We conclude defendant is entitled to only two days of conduct credit for every four days served in presentence custody. This is because in this case and on a prior occasion defendant was convicted of a serious felony.
This case does not involve a murder or other violent felony conviction.
Presentence conduct credits in such cases involve different calculations. (§§ 2933.1, subd. (c) [15 per cent limit on presentence conduct credits in violent felony conviction prosecutions]; 2933.2 [no presentence conduct credits for convicted murderers].) Hence, we are not discussing in any way the effect of the five legislative bills on presentence conduct credits in murder or other violent felony prosecutions.
[The portion of this opinion that follows, part II is deleted from publication.]
The victim, 73-year-old Charles Brooks, was a hotel manager in Los Angeles. Mr. Brooks was unavailable as a witness at trial. His prior testimony was read into the record. Mr. Brooks had seen people in the area of the hotel who were under the influence of alcohol or drugs many times. And as manager, it was his responsibility to handle any disturbances in the building. He was required to confront people and remove them from the building when they caused disturbances.
On May 28, 2010, at about 4:45 p.m., Mr. Brooks found defendant on the third floor of the hotel. Defendant was lying on his back on the floor and knocking on the door to a room. Mr. Brooks had never seen defendant before. Defendant was not a building tenant so far as Mr. Brooks knew. Mr. Brooks picked defendant up off the floor. Defendant was picked up by his shirt. Mr. Brooks shook defendant. Mr. Brooks said to defendant, "Hey, you got to go." Defendant was incoherent, dazed and unfocused. He appeared to be drunk or on drugs. His eyes were nearly closed.
Within minutes, however, defendant became very agitated. Defendant said he was going to go home and get his AK-47. Defendant threatened to shoot Mr. Brooks's ass. He said it in a vicious tone of voice. He did not use the word "kill." Mr. Brooks started to walk away down the hall. Defendant got up off the floor and followed Mr. Brooks. Defendant said: "I will blow your ass away. I am Mexican." Mr. Brooks "definitely" took that statement as a threat. He walked to the staircase and down to the second floor. Defendant followed Mr. Brooks. At trial, Mr. Brooks described defendant's ensuing stalking conduct, "He was following me." When asked how far behind, defendant testified, "Maybe 15, 20 feet."
A second floor tenant, Eugene Wilson, had left his door open. Mr. Brooks described their conversation: "I told him to call 911. He said, you call 'em. He gave me the phone, and I called 911." Defendant went to another second floor apartment and tried to force his way in. Then he went down to the lobby and took off all his clothing. He re-clothed himself and started to leave the building, but police officers were waiting for him at the door.
Mr. Brooks was asked about how he felt: "Q 'Did [defendant's first statement] make you feel anything when he said that to you? [¶] 'A A little comprehension, yeah. [¶] 'Q What do you mean by that? [¶] 'A A little bit of being afraid, yes. [¶] . . . [¶] 'Q . . . [¶] And then when he followed you and he said the statement that he said regarding I'm Mexican, and I don't remember the other words. What were the other words that he said? [¶] 'A He said, I will blow you away. He said, I'm Mexican. [¶] 'Q And when he said that, did that make you feel the same way? [¶] 'A About the same, yes. [¶] 'Q Okay. [¶] And did you feel like it was possible that he could carry out those threats? [¶] . . . [¶] 'A Yes."
The jury listened to a recording of Mr. Brooks's conversation with the emergency operator. Mr. Brooks can be heard breathing heavily. Mr. Brooks told the operator, "I got a Mexican guy here . . . that tried to assault me." Mr. Brooks said, "He's planning to shoot me, you want to get a cop out here or not?" A man can be heard shouting in the background.
Mr. Wilson had known Mr. Brooks for five years. Mr. Wilson testified Mr. Brooks had to confront problems in the building all the time. Mr. Wilson had seen Mr. Brooks do so on prior occasions. On those occasions, Mr. Brooks had been frightened. Mr. Wilson had heard Mr. Brooks angry and frustrated during confrontational conversations. On the date of the present incident, Mr. Wilson watched Mr. Brooks telephone the emergency operator. Mr. Brooks appeared to Mr. Wilson to be nervous and shaken. Mr. Wilson testified, "He seemed more scared than I'd ever seen him." Mr. Brooks's voice when he was talking during the emergency telephone call was similar to earlier incidents, but different. Mr. Wilson testified: "It was a little more nervous, and it was really shaken up loose. Usually he's real strong and ready to fight back, but this time he was scared."
Detective Tina Ross interviewed Mr. Brooks by telephone. Mr. Brooks said defendant said, "I'm a big gang member" and referred to a specific street gang. Mr. Brooks told Detective Ross that defendant stripped naked in the lobby. Defendant then again threatened to kill Mr. Brooks.
Officer Amme Michelle Green and a partner detained defendant who was about to exit the building. Defendant, who was drunk, did not resist when handcuffed. He was transported to the jail dispensary to be treated for alcohol consumption. Mr. Brooks told Officer Green defendant said: "Shut up, old man. I'm going to kill you" and "I'm going to get my AK 47 and ...