Filed 7/31/13 P. v. Garcia CA2/8
Opinion following remand from Supreme Court
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B227137

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA373574)
         v.

ROBERTO GARCIA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Alex Ricciardulli, Judge. Affirmed.


         Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and
Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Roberto Garcia appeals from the trial court’s judgment finding that a prior
conviction reduced the presentence custody credits to which he was entitled. We affirm.

                                      DISCUSSION

       Appellant Roberto Garcia was arrested in the summer of 2010 and charged with
four counts of selling or offering to sell methamphetamine. It was also alleged he had a
prior conviction for a serious or violent felony. Appellant entered into a plea bargain
admitting one count, and the trial court dismissed the three remaining counts. The court
sentenced appellant to three years in state prison. In calculating appellant’s presentence
custody credits, defense counsel noted appellant had served 50 days in actual custody.
Therefore, according to counsel, appellant was entitled to 50 days of good time/work
time conduct credit under the version of Penal Code section 4019 (§ 4019) then in effect.
That version awarded a prisoner two days of conduct credit for each two days served.1
       The court disagreed. It ruled appellant was entitled to only “regular presentence
credits” of two days conduct credit for every four days served because he had a prior
serious felony conviction in 1989 for shooting at an inhabited dwelling. Appellant
objected to the court’s reliance on his prior conviction to reduce his conduct credits
because appellant had not admitted, nor had the People proved, the prior conviction. The
court overruled appellant’s objection, finding the prior conviction rendered him ineligible
for the extra custody credit despite the People’s failure to prove the conviction.
       Appellant appealed from the denial of the additional credit. In an unpublished
opinion, we reversed the trial court in a 2-1 decision. (People v. Garcia (Aug. 16, 2011,
B227137) [nonpub. opn.].) The decision noted that the question of whether a court may
reduce presentence custody credits based on a prior conviction that the People did not
plead and prove was pending before our Supreme Court. (Id. at p. 8) The majority in our
decision held the People must plead and prove the prior conviction because reduction of

1     At the time of appellant’s sentencing in August 2010, then-section 4019,
subdivision (f) stated “a term of four days will be deemed to have been served for every
two days spent in actual custody.”
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presentence custody credits had the effect of increasing appellant’s punishment by
lengthening his time in prison. (Id. at pp. 3-4.)
       The People filed a petition for review. (People v Garcia, review granted Sept. 23,
2011, S196711). The Supreme Court issued a grant-and-hold order pending its
consideration of a related issue in People v. Lara. In July 2012, the Supreme Court
issued its decision in People v. Lara (2012) 54 Cal.4th 896. Lara held that the People
need not plead and prove a prior conviction for a court to rely on it to reduce a
defendant’s presentence custody credits. (Id. at pp. 903, 906.) “The People were not . . .
required to plead defendant’s credit disabilities [from a prior conviction] in the complaint
or prove them to the trier of fact.” (Id. at p. 906.)
       In May 2013, our Supreme Court transferred appellant’s case to us with directions
to vacate our decision and to reconsider the cause in light of Lara. We have done so, and
conclude our prior analysis cannot stand. As Lara explained, “We need not take issue
with the proposition that a person who is released a day early is punished a day less. The
very purpose of conduct credits is to foster constructive behavior in prison by reducing
punishment. However, the conclusion that credit-limiting facts must formally be pled
and proved does not follow.” (Lara, supra, 54 Cal.4th at pp. 905-906.) Appellant’s only
contention on appeal was the court erred by relying on an unproven prior conviction to
reduce his presentence conduct credits. Lara makes that contention untenable.

                                       DISPOSITION

       The judgment is affirmed.




                                                    RUBIN, ACTING P. J.
WE CONCUR:



              FLIER, J.                                                GRIMES, J.


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