Filed 4/25/13 P. v. Tuck CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E055503

v.                                                                       (Super.Ct.No. RIF10001848)

ELVIS ARMANDO MART TUCK,                                                 OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Edward D. Webster,

Judge. Affirmed with directions.

         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kathryn Kirschbaum, Deputy

Attorney General, for Plaintiff and Respondent.

         A jury found defendant Elvis Armando Martinez Tuck guilty of active

                                                             1
participation in a criminal street gang (Pen. Code,1 § 186.22, subd. (a)), but could not

reach a verdict on a charge of murder (§ 187, subd. (a)), involving discharge of a firearm

(§ 12022.53, subd. (d)), committed for the benefit of a street gang. (§ 186.22, subd. (b).)

After the court declared a mistrial on the murder count, retrial proceedings commenced,

but the People agreed to dismiss the murder charge in return for the defendant’s

admission of several prior convictions and his agreement to a stipulated sentence, as well

as a waiver of defendant’s appeal rights. Defendant was sentenced to an aggregate term

of 13 years of prison, waived 365 days of presentence custody credit pursuant to the

agreement, and appealed, notwithstanding the waiver of appeal rights.

                                      BACKGROUND

       In January of 2010, Lynn Bowman lived at an address in Riverside with her four-

year-old daughter, her mother, her friend Stephanie, and Stephanie’s sister. The house

was a known drug house where people went to do methamphetamine, smoke marijuana,

and drink alcohol. Codefendant Eugene Garcia, known to Lynn as “Stony,” but who was

also called “Darky,” came to the house frequently to use drugs with Lynn.

       Lynn’s boyfriend in January 2010 was Joseph Romero, a member of the West Side

Riva gang, known by the moniker “Hobo.” Hobo had been in jail until December 2009.

Upon his release from jail on December 29, 2009, Hobo resumed his relationship with

Lynn and lived with her. Hobo did not like all the people coming over to the house to use

       1   All further statutory references are to the Penal Code unless otherwise indicated.



                                              2
drugs and got angry. He would be very rude to people at the house and became very

controlling over Lynn. At some point, Lynn and Hobo broke up and Hobo moved out.

       Hobo wanted to get back together with Lynn after the breakup, and continued to

come over to visit with Lynn’s daughter. He also followed Lynn in a car. On occasion

Hobo bragged about the fact that he had been in protective custody while incarcerated.

Since sex offenders and snitches were usually the types of person put in protective

custody, Hobo’s claim that he was “PC” was viewed negatively. One such occasion

occurred on approximately January 2, 2010, when Darky was present.

       On January 5, 2010, several people were at Lynn’s house using drugs. Stoney was

there earlier in the day with someone called Cloudy. A friend named Manuel was there

also. At some point, Hobo came over two times during the afternoon with Cale

McMillin,2 whom Lynn referred to as “Kato.” The first time Hobo came to the house,

everyone got along. The second time Hobo and Kato came over was in the evening, and

Stoney was there, as was Manuel. Hobo got everyone out of Lynn’s room because he

was angry that a lot of people were there and he wanted to talk to Lynn. Hobo dropped

off some drugs and alcohol for Lynn and she saw a gun in his pocket. Hobo usually

carried a gun with him.

       The two talked in Lynn’s room for about a half an hour. Hobo was talking loudly

enough for everyone to hear, referring to the others at the house as “fools” who did not

       2  Cale had no recollection of going into the house on either of the two earlier
visits to Lynn’s residence.

                                             3
care about her or her child. Hobo was known to have a bad temper. Hobo gave Lynn an

ultimatum, telling her that he would be back in three hours and that she should be ready

to go with him. As Hobo walked out he said he would be back. As he left the house,

Kato went with him, with Hobo driving crazily, doing donuts in the front yard. Lynn

stayed in her room for about an hour, and when she came out, Stoney, Manuel, and

Cloudy were no longer there.

       Lynn had a bad feeling. She tried to call the telephone number Hobo had called

her from, and spoke to a girl Hobo had been seeing. Lynn told her not to let Hobo come

over, that it was dangerous and he should not be around her house. Subsequently, Hobo

and Kato drove up, skidding to a stop in the gravel near her house. Lynn went out to the

car to speak to him. She told Hobo she did not want to be with him anymore and told

him repeatedly to leave.

       While Lynn spoke to Hobo, she saw a white car pull up behind a burgundy van.

The white car belonged to Manuel, who parked at an angle. At the end of the street,

Lynn saw a truck pull into the area. Three people got out of the truck, walked through

the field near Lynn’s house. They wore hooded sweatshirts and carried guns. As they

walked towards Hobo’s vehicle (an SUV), Lynn urged Hobo to leave. Lynn saw Hobo

reach underneath his seat; she believed he pulled a gun from that area and put it on his

lap. Manuel Lopez, in the other vehicle, heard loud voices near the SUV, heard shots,

and looked in his mirror to see an arm and muzzle blast coming from the SUV.



                                             4
       Hobo and Kato pulled away and started to drive away. Lynn ran. One of the three

individuals spread out from the other two. The one person walked to the front of Hobo’s

vehicle while the other two went around to the rear. The person walking in front of the

vehicle had acne or some kind of blemish on his face. As Hobo took off and as Lynn got

to her door, she heard three gunshots. The first shot was louder than the other two. After

Hobo left, Manuel left in his car. As Lynn ran into the house, she heard one of the

females who were outside at the time yell, “F--- that fool.” “He’s PC,” or similar words.

After the shooting, Cloudy also said “F--- Hobo. He’s PC.”

       Cale was riding in the car with Hobo and heard a shot as Hobo pressed the

accelerator. As they drove away, Cale asked Hobo if he was okay, and Hobo eventually

responded that he had been hit. Then Hobo let go of the steering wheel, stepped on the

accelerator, and made snoring sounds. Cale grabbed the steering wheel, and the car

stopped after going through an intersection. A bystander called 911. When police

arrived, Cale initially claimed he was merely walking by when the SUV pulled into a

driveway with a driver slumped over, but he later admitted to being in the car with the

victim, Hobo, and directed law enforcement officers to the location of the shooting.

       Joseph Romero, Hobo, had suffered two gunshot wounds: one shot penetrated his

left kidney, while the second bullet entered the lower lobe of his left lung, hitting the

pancreas and aorta, and resting in the musculature of the abdominal wall. Gunshot

residue was found on the victim’s hands, consistent with discharging a weapon, or being



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in an environment of gunshot residue, or receiving the particles from an environmental

source.

       In March 2010, detectives received a letter from a prison inmate at the California

Institute for Men at Chino3, who was a former cellmate of Garcia’s (codefendant), and

who had information about the homicide of Hobo, also known as Joseph Romero. Favio

Contreras had been housed with Eugene Garcia, the codefendant, who introduced himself

as “Darky” and claimed to be the president of the Corona 4th Street VNS gang. Darky

had been incarcerated for a parole violation.

       While sharing the cell, Darky told Favio about the homicide of Hobo, a member of

East Side Riva, in January 2010. Darky told Favio that he and Hobo were enemies

because Hobo was in PC, and because Darky was going out with Hobo’s girlfriend,

Lynn. Darky and Lynn called Hobo to cover to meet them, while Darky and his co-

participant, the defendant, Darky’s brother, known as “Lil’ Man,” waited for him. They

waited at the house with two other “homies” of Darky.

       Darky went on to tell Favio that when Hobo came over, Darky and Lil’ Man were

hiding, one in the back and one in the front; they thought Hobo had a gun. Darky and his

associates were armed also. When Hobo drove up, Lynn came out of the house and went

to the driver’s side of the vehicle to speak to Hobo. While she was talking to Hobo,

Darky shot him from behind. After Darky shot Hobo with a .22 rifle, his brother, the


       3   The inmate referred to it as Chino State Prison.

                                                6
defendant, shot him with a nine-millimeter handgun through the windshield, hitting Hobo

in the chest.

       The defendant4 was charged by an amended information with one count of murder

(§ 187, subd. (a)), with an allegation that the crime was committed for the benefit of a

criminal street gang (§ 186.22, subd. (b)), and an allegation that defendant personally

used a firearm in the commission of the offense. (§ 12022.53, subds. (d), (e).) In count

2, defendant was charged with active participation in a criminal street gang. (§ 186.22,

subd. (a).) It was further alleged that defendant had suffered three prior convictions for

which he had served prison sentences (§ 667.5, subd. (b) [prison priors]), one prior

conviction for a serious felony (§ 667, subd. (a) [nickel prior]), and one prior conviction

for criminal threats (§ 422) under the Three Strikes law.

       At trial, defendant presented an alibi defense to the murder, with family members

testifying that health problems kept him at home on the date of the murder. Garcia, the

codefendant, testified in his own defense that he was involved in a relationship with Lynn

while Hobo was in jail, but he stepped aside when Hobo was released so Hobo could

resume with Lynn. Garcia knew that Hobo was jealous, that he carried a gun, and that he

was trying to find out who Lynn had been with while he was in jail.

       Garcia testified that on the day of the shooting, Hobo came out of Lynn’s house

angry and upset, and drove away after giving Garcia a dirty look. Lynn warned Garcia

       4Defendant’s step-brother, Eugene Garcia (Darky) was also charged, and the
cases were consolidated. However, Garcia is not involved in this appeal.

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that Hobo would kill him. After Garcia asked Manuel to take him to his house to pick up

some clothes, they stopped by a friend’s house (Rudy), and Garcia asked Rudy for some

help with the situation. The three went back to Lynn’s address where they saw Hobo pull

up and saw Lynn go out to the car to talk with him. Garcia heard Lynn tell Hobo to

leave, and then he heard Hobo tell Lynn to get out of the way. Hobo “mad-dogged”

Garcia through the side mirror of his car, and then drove slightly forward; Garcia heard a

“boom” and shot back with a revolver. Garcia feared for his life when he saw the way

Hobo looked at him. Garcia denied telling Favio (aka “Flaco”) that his brother was

involved in anything, although he acknowledged telling Flaco that he had a brother

named Elvis Tuck who was known as “Lil’ Man.”

       Following trial, the jury, which deliberated for five days, was unable to reach a

verdict on the murder and related charges in count 1, resulting in a mistrial on that count.

The jury found defendant guilty of count 2, the active participation in a street gang

charge. When proceedings resumed for retrial of the murder count, the parties reached a

resolution. As to defendant, the People agreed to dismiss count 1 in return for

defendant’s admission of all prior conviction allegations, as well as his waiver of 365

days of presentence custody credits5 in return for a stipulated term of 13 years in prison,

and a waiver of defendant’s appeal rights.



       5The People were seeking 14 years in custody, but that number could only be
achieved by imposing a 13-year term with a waiver of 365 days previously served.

                                             8
       Defendant admitted the prior conviction allegations pursuant to the agreement, and

waived his right to appeal. The People dismissed count 1 following defendant’s

admissions. The court sentenced him to the upper term of three years for count 2,

doubled under the Strikes law to six years. The court then imposed a five-year term for

the nickel prior enhancement, and two years for the two prison priors, for a total sentence

of 13 years in prison. The court awarded defendant 249 days credit for time actually

spent in presentence custody, plus 37 days conduct credits pursuant to section 2933.1.

       On January 20, 2012, defendant filed a notice of appeal along with a request for a

certificate of probable cause. The trial court denied the certificate of probable cause on

January 23, 2012.

                                      DISCUSSION

       Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493]

setting forth a statement of the case, a summary of the facts, and potential arguable

issues, and requesting that we undertake an independent review of the entire record.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error. Our independent review leads us

to conclude that the court erroneously calculated defendant’s conduct credits. We

requested supplemental briefing from the parties. We conclude that because defendant’s

conviction of active participation in a criminal street gang, pursuant to section 186.22,



                                             9
subdivision (a), is not a violent felony, defendant was entitled to presentence credits

pursuant to section 4019, not section 2933.1, but he is not entitled to day-for-day credits.

       1. Defendant is Entitled to Section 4019 Credits For Presentence Custody.

       a.     Sentencing Information

       Prior to the imposition of the sentence, the court and both counsel discussed the

number of days of credit for time served. In order to comply with the People’s

requirement that defendant serve 14 years in incarceration, defendant had to waive 365

days of credit for time served. The parties discussed the conduct credits, assuming that

defendant earned only 15 percent credits pursuant to section 2933.1. After advising

defendant of the rights he was waiving and the consequences of the plea, the court

informed defendant he would be given credit for 249 days actual time and 37 days of

conduct credit pursuant to section 4019.

       As the proceedings went on, the defendant asked questions about the impact of the

current conviction upon his status as a second striker, and whether he would serve 80

percent of his time. After the court explained the credits under the Strikes law,

codefendant’s counsel stated that he believed the defendant would be serving 85 percent,

tacitly referring to section 2933.1. The court disagreed because section 186.22,

subdivision (a), is not a violent felony, listing the offenses that qualify as violent felonies.

Thus, the court concluded defendant would serve 80 percent of his sentence.

       However, when the court actually pronounced sentence, it awarded defendant 249

days credit for time actually served, and “37 days 2933 time for a total of 286 days.” The

                                              10
court awarded defendant credits at 15 percent of defendant’s presentence custody time.

Because the court had previously determined that the current offense was not a violent

felony, we conclude it inadvertently awarded the reduced amount of presentence conduct.

       b.     Legal Discussion

       The Three Strikes law imposes a 20 percent limitation on sentence credits.

(§§ 667, subd. (c)(5), 1170.12, subd. (a)(5).) However, the limitation on credits

applicable to sentences imposed under the Strikes law applies only to post-commitment

credits. (People v. Henson (1997) 57 Cal.App.4th 1380, 1385, fn. 5].) Except where

section 2933.1 applies, a defendant sentenced under the Strikes law is entitled to

presentence credits pursuant to section 4019. (People v. Buckhalter (2001) 26 Cal.4th 20,

32, citing People v. Thomas (1999) 21 Cal.4th 1122, 1125; People v. Hill (1995) 37

Cal.App.4th 220, 225-227.)

       Only when the current offense is a violent felony as defined in section 667.5,

subdivision (c), is a defendant’s presentence custody credit limited to 15 percent.

(People v. Thomas, supra, 21 Cal.4th at p. 1130.) Here, the defendant’s current offense is

not a violent felony within the meaning of section 2933.1, so he was entitled to § 4019

credits. The trial court acknowledged as much prior to pronouncing sentence, but

inadvertently stated that defendant’s credits should be calculated in accordance with

section 2933.1. The defendant is entitled to presentence credits according to the

appropriate version of section 4019, to which we now turn.



                                            11
       2.     Under Senate Bill No. 18, Operative January 25, 2010, Defendant is

entitled to Six Days Credit for Every Four Days Served Pursuant to Section 4019.

       In supplemental briefing, the defendant argues he is entitled to the more liberal

credits provided under the amended version of section 4019 enacted as part of the

Criminal Justice Realignment Act, effective October 1, 2011. The People argue that the

defendant committed his crime prior to the effective date of Senate Bill 18 (2009 Stats.,

ch. 28, § 50), so his credits must be calculated under the version of the statute in effect on

the date of his offense. We disagree with both assertions.

       Section 4019 provides that a criminal defendant may earn additional presentence

credit against his or her sentence for performing assigned labor (§ 4019, subd. (b)), and

for complying with applicable rules and regulations. (§ 4019, subd. (c); People v.

Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Prior to January 25, 2010, section 4019

provided, in relevant part, that a term of six days would be deemed to have been served

for every four days spent in actual custody. (Former version of § 4019, subd. (f), as

amended by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) No reference was made to the

date of the offense or dates of custody under this version.

       Effective January 25, 2010, Senate Bill 18 contained an amendment to section

4019, increasing the amount of presentence custody a defendant could earn. (2009 Stats.,

ch. 28, § 50.) As amended, subdivision (f) of section 4019 provided that, “It is the intent

of the Legislature that if all days are earned under this section, a term of four days will be

deemed to have been served for every two days spent in actual custody, except that a

                                             12
term of six days will be deemed to have been served for every four days spent in actual

custody for persons described in paragraph (2) of subdivision (b) or (c).” (Stats. 2009,

ch. 28, § 50, amending § 4019, subd. (f).)

        Not everyone was entitled to the enhanced credit provisions under Senate Bill 18.

Subdivision (b) of the January 25, 2010, amendment (Sen. Bill No. 3X 18) provides that

if the prisoner is required to register as a sex offender, was committed for a serious

felony, or has a prior conviction for a serious or violent felony, one day shall be deducted

from his period of confinement for each six-day period for labor, and one day for good

conduct. (Stats. 2009, ch. 28, § 50, amending § 4019, subds. (b)(2), (3).)

        Thus, for persons convicted of sex offenses and serious or violent felonies, or who

had prior convictions for a serious or violent felony, after January 25, 2010, the prisoner

could earn six days credit for every four days served, while other prisoners earned four

days credit for every two days served. (2009 Stats., ch. 28, § 50, amending § 4019, subd.

(f).) Subdivision (f), the last subsection of the amendment to section 4019 pursuant to

Senate Bill No. 18, does not include any language limiting its application to crimes

committed on or after the effective date.

        The January 25, 2010, amendment (Sen. Bill No. 3X 18) was held to operate

prospectively only, because the increased credits were intended to provide inmates with

incentive to conform, although the statute did not expressly provide that it applied to

offenses committed on or after that date. (People v. Brown (2012) 54 Cal.4th 314, 328-

329.)

                                             13
       Senate Bill No. 76 went into effect on September 28, 2010, and amending sections

2933 and 4019. (Sen. Bill No. 76; 2010 Stats., ch. 426, §§ 1, 2.) That amendment

changed the language of subdivisions (f) and (g). Subdivision (f), as amended, reduced

presentence conduct credits so that a defendant was deemed to have served a term of six

days for every four days served. Subdivision (g) provided that, “The changes in this

section as enacted by the act that added this subdivision shall apply to prisoners who are

confined to a county jail, city jail, industrial farm, or road camp for a crime committed on

or after the effective date of that act.” Senate Bill 76 also included an amendment to

subdivision (b) of section 4019, eliminating the provisions under which persons required

to register as sex offenders, person convicted of violent felonies, and persons having prior

convictions for violent felonies, were ineligible for the optimal credits under section

4019. Thus, under the September 28, 2010, amendment, all prisoners earned six days

credit for four days served.

       In 2011, the Legislature began the arduous process of drafting and enacting the

Criminal Justice Realignment Act of 2011. The bill, which was chaptered on April 4,

2011, originated with the Committee on Budget to address a fiscal emergency declared

by the Governor. (See Assem. Bill No. 111, Stats. 2011-2012, ch. 16, Legis. Counsel’s

Digest.) The Criminal Justice Realignment Act enacted sweeping changes to long-

standing sentencing laws, replacing prison commitments with county jail commitments

for certain felonies and eligible defendants. (People v. Clytus (2012) 209 Cal.App.4th

1001, 1004.) It also included another amendment to section 4019, again increasing the

                                             14
presentence custodial credit for incarcerated persons so that a prisoner is deemed to have

served four days for every two days actually served. (Assem. Bill No. 17X, 2011 Stats.

ch. 12 A, § 35.)

       Subdivision (f) of section 4019 provided that a term of four days will be deemed

to have been served for very two days spent in actual custody, while subdivision (g) of

the amended statute provided that “[t]he changes in this section as enacted by the act that

added this subdivision shall apply to prisoners who are confined to a county jail, city jail,

industrial farm, or road camp for a crime committed on or after the effective date of that

act.” The amendment also added subdivision (h) which provides, “The changes to this

section enacted by the act that added this subdivision shall apply prospectively and shall

apply to prisoners who are confined to a county jail, city jail, industrial farm, or road

camp for a crime committed on or after October 1, 2011. Any days earned by a prisoner

prior to October 1, 2011, shall be calculated at the rate required by the prior law.” The

enhanced conduct credit provisions apply only to defendants who committed their crimes

on or after October 1, 2011. (People v. Rajanayagam, supra, 211 Cal.App.4th at p. 52.)

       In People v. Ellis (2012) 207 Cal.App.4th 1546, the Fifth Appellate District

considered whether the final amendment, effective on October 1, 2011, applied to a

defendant whose crime was committed after September 28, 2010, but before October 1,

2011. There, the defendant argued that the October 1, 2011, amendment applied, because

he was sentenced after the effective date, entitling him to enhanced credits. (Id. at pp.

1549-1550.) The reviewing court disagreed because the plain language of the statute

                                              15
required prospective-only application based on the date the crime was committed. (Id. at

p. 1550.)

       In People v. Garcia (2012) 209 Cal.App.4th 530, the defendant committed violent

threats (§ 422) on May 28, 2010, when he was taken into custody. He was sentenced on

January 26, 2011, and argued he was entitled to receive the enhanced credits pursuant to

the January 25, 2010, amendment. The court agreed he should be sentenced under the

January 25, 2010, amendment (Sen. Bill No. 3X 18), but because the defendant’s current

offense was a violent felony, and he had a prior conviction for a serious felony, the

reviewing court concluded the defendant was entitled to two days credit for every four

days actually served. (Garcia, at p. 536.)

       Here, the January 25, 2010, amendment is the only version of section 4019 that is

applicable because all subsequent amendments were expressly made applicable to crimes

committed on or after their effective dates. However, the defendant has a prior

conviction for criminal threats with a gang enhancement, under sections 422 and 186.22,

subdivision (b), a serious felony. Pursuant to former section 4019, subdivisions (b)(2)

and (c)(2), defendant was eligible to earn six days credit for every four days served.

(Former section 4019, subd. (f), pursuant to Sen. Bill No. 18, 2009 Stats. ch. 28, § 50.)

       We remand the matter to the superior court to calculate defendant’s presentence

credits, and prepare an amended abstract of judgment, reflecting the additional credit.

When amending the abstract, we also direct the clerk of the court to check the box on line

number 4, indicating that the defendant was sentenced under the Strikes law. The

                                             16
amended abstract should then be forwarded to the Department of Corrections and

Rehabilitation.

                                     DISPOSITION

       The matter is remanded to the trial court with directions to recalculate defendant’s

presentence credits under former section 4019, effective January 25, 2010. The clerk is

directed to prepare an amended abstract of judgment reflecting the modified award of

presentence credits, and checking the box on line number 4, indicating that defendant was

sentenced under the Strikes law. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                       P. J.

We concur:


KING
                          J.


CODRINGTON
                          J.




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