Opinion
F075934
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MANUEL MENDEZ, Defendant and Appellant.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2060731)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Shawn D. Bessey, Judge. Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Defendant Manuel Mendez contends on appeal he is entitled to an additional day of actual custody credit and two additional days of conduct credit. We modify the judgment and affirm as modified.
BACKGROUND
On about November 29, 2015, defendant broke into a grocery store and stole lottery tickets.
On June 16, 2016, defendant pled no contest to burglary (Pen. Code, § 459) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He also admitted having suffered a prior felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served three prior prison terms (§ 667.5, subd. (b)). !(CT 18-19, 21-26, 36)! Defendant was released and failed to appear for sentencing. A warrant was issued and defendant was arrested.
All statutory references are to the Penal Code unless otherwise noted.
On September 12, 2016, the trial court sentenced defendant to two years on the burglary count, doubled pursuant to the Three Strikes law. The possession count was reduced to a misdemeanor and the prior prison term allegations were stricken. For presentence custody credits, the trial court granted 105 days of actual custody credits and 104 days of conduct credit, for a total of 209 days.
DISCUSSION
Defendant contends, and the People agree, that he is entitled to another day of actual custody credit because the trial court erred when it calculated his custody days from the date of his booking, rather than the day of his arrest. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 ["Calculation of custody credit begins on the day of arrest and continues through the day of sentencing."]; People v. Arevalo (2018) 20 Cal.App.5th 821, 827 (Arevalo) ["The calculation of actual credits is performed by simply adding together 'all days of custody' the defendant has served."].) Accordingly, defendant must receive 106 days of actual custody credits.
Defendant attempted to resolve the issues he raises here with a letter to the trial court, pursuant to People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel (2002) 103 Cal.App.4th 516. (In that letter, however, he requested only 105 days of conduct credits.) The trial court determined that the credits awarded beginning with defendant's booking date were correct.
Defendant argues he is also entitled to 106 days of conduct credit pursuant to section 4019. The People do not address this issue. We agree with defendant. "Under section 4019, a defendant can earn two conduct credits for every two actual credits. (§ 4019, subds. (b), (c), (f); [citation].)" (Arevalo, supra, 20 Cal.App.5th at p. 827, fn. omitted.) "This calculation is often referred to as 'day for day' credits. But because the statutory formula actually awards conduct credits based on every two days served, when the actual time served is an odd number the resulting conduct credits are the next lower even number." (Id. at p. 827, fn. 3.) Thus, when the trial court awarded 105 days of actual custody credits (an odd number), it awarded 104 days of conduct credits. But because defendant is entitled to 106 days of actual custody credits, he is also entitled to 106 days of conduct credits.
DISPOSITION
The judgment is modified to reflect one additional day of actual presentence custody credits (106 days) and two additional days of custody credits (106 days) for a total of 212 days. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the appropriate authorities.