(Super. Ct. No. CM034285)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Lester Mark Geeting appeals from the trial court's imposition of sentence following his plea pursuant to a plea agreement. He first contends the court erred by failing to accurately calculate his presentence conduct credit pursuant to Penal Code*fn1 section 4019, as amended effective October 1, 2011. He further contends he is entitled to specific performance of the plea agreement. We conclude that the trial court correctly calculated defendant's conduct credit, and the plea agreement did not specify a different calculation. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information filed October 19, 2011, charged defendant with felony possession of oxycodone (count 1; Health & Saf. Code, § 11350, subd. (a)) and felony possession of methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)) on or about April 14, 2011. It was alleged as to both counts that defendant had served two prior prison terms (§ 667.5, subd. (b)) and had incurred one strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). It was also alleged that because of his strike, any executed sentence for a felony would be served in state prison. (§ 1170, subd. (h)(3).)
Defendant entered into a plea agreement on November 17, 2011. Under the written terms of the agreement, defendant pled no contest to count 2 and admitted the prior prison terms, and the trial court dismissed count 1 and the strike allegation. The agreement described an open plea under which defendant could receive a sentence of up to five years in state prison at 50 percent time (as compared to his maximum exposure of nine years four months at 80 percent time if convicted on all counts). After accepting defendant's plea, the court referred the matter to the probation department for a presentence report.
Neither the written plea agreement nor the trial court's oral exchange with defendant calculated any specific award of conduct credit or used the term "day for day" credit. Other than a fleeting reference to "five years at half time" and "nine years, four months, [at] only 20 percent credits," neither the trial court nor the attorneys mentioned "credits" or any related term. Near the end of the hearing, defendant asked the trial court: "If I do ultimately have to go to prison, will I get this time that I was in jail or will I get my credits?" The court answered: "Certainly." This was the extent of the mention of credits at the plea hearing; the written plea form contained no mention of conduct credit.
On January 4, 2012, at the first sentencing hearing, the probation officer stated that there were "a couple of inconsistencies" in the probation report. First, contrary to the report, defendant's term would be served in state prison because he had been convicted of a prior serious and violent felony. Second, "due to the prior serious and violent felony conviction," defendant's "4019 PC credits are reduced to 132 days versus 266."
The People agreed with the probation officer; the trial court continued the hearing for a week to give defense counsel time to research and brief the credit issue. Neither the People nor defense counsel filed anything.
On January 11, 2012, the trial court sentenced defendant to an aggregate term of four years in state prison (the two-year midterm plus two years for the prior prison terms). The probation officer calculated that under section 4019 defendant was entitled to 273 days of actual credit and 136 days of conduct credit and the trial court agreed.
Defendant himself then voiced a lengthy objection to the "dual use of the prior in this incident" and indicated that he wanted to appeal from as well as withdraw from his plea. He added: "Now I'm suffering a hundred and thirty-two days that I'm not going to get. And I asked you specifically when I ...