California Court of Appeals, Second District, Fifth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA397934 Terry A. Bork, Judge.
[Copyrighted Material Omitted]
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II, Viet H. Nguyen and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Salvatore Chilelli, pled no contest to stalking in violation of Penal Code section 646.9, subdivision (b). As charged in the felony complaint, defendant’s stalking-related activity was a single offense consisting of a continuing course of conduct. According to the felony complaint, defendant stalked the victim from July 23, 2009, through May 18, 2012. This time period, July 23, 2009, through May 18, 2012, straddled three changes in the law governing the rate at which presentence conduct credits accrue. The presentence conduct credit computation method on May 18, 2012, was slightly less favorable than during one of the three accrual rates in effect during defendant’s continuous course of conduct. At our request, the parties have briefed the question of whether the slightly less favorable accrual rate can apply to defendant without violating federal and state ex post facto provisions. We conclude there is no ex post facto violation because of the continuing nature of defendant’s criminal conduct. We modify defendant’s presentence custody credit. We affirm the judgment in all other respects.
A. Defendant Committed A Continuing Offense
In order to resolve the ex post facto question, we must initially determine whether defendant committed a continuous offense which straddles the applicable presentence conduct accrual rate. Our Supreme Court discussed the concept of a continuing offense in Wright v. Superior Court (1997) 15 Cal.4th 521, 525-526 [63 Cal.Rptr.2d 322, 936 P.2d 101] (Wright). In Wright, the defendant was a registered sex offender who was convicted of failing to notify law enforcement officials of a change of address. Our Supreme Court explained: “Most crimes are instantaneous since they are ...