Filed 10/3/13 P. v. Wallace CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038930
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F11498)

         v.

TRAISEN RAY WALLACE,

         Defendant and Appellant.



         Defendant Traisen Ray Wallace was placed on probation after pleading guilty to
possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and selling,
transporting, or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)).
Thereafter, defendant violated probation and the trial court sentenced him to three years
in prison.
         On appeal, defendant contends, and the Attorney General concedes, that the trial
court erred by (1) failing to award an additional 180 days of actual custody credit and
(2) limiting his conduct credit to 20 percent. We agree that the concessions are
appropriate, and we will therefore modify the judgment.
                                                 BACKGROUND 
         In June 2005, the District Attorney filed an information charging defendant with
possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1) and selling,
transporting, or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a);
count 2). The information further alleged that at the time the offenses were committed,
defendant was released from custody on bail or on his own recognizance (Pen. Code,
§ 12022.11). On July 21, 2005, defendant pleaded guilty to both counts, and the
enhancements were stricken as to both counts. The trial court suspended imposition of
sentence and placed defendant on probation for three years. As a condition of probation,
defendant was ordered to serve 365 days in county jail.
       At the plea hearing, the prosecutor stated on the record that defendant could serve
part of his 365-day jail sentence in the SAFE program, which was a six-month residential
treatment program. The trial court agreed with the prosecutor’s statements.
       Defendant completed the SAFE program on January 17, 2006. Thereafter,
defendant requested a modification of his probation. The trial court granted defendant’s
request and deemed his 365-day custody sentence terminated as of January 17, 2006.
       In June 2006, the trial court revoked defendant’s probation and issued a bench
warrant on the grounds that defendant failed to stay in touch with his probation officer.
In July 2012, defendant was arrested on a new offense.
       In October 2012, the trial court found defendant had violated probation, and it
sentenced him to three years in prison. When defendant inquired whether he was entitled
to custody credit for the time he spent in the SAFE program, the court responded that he
was not entitled to such credit. The court awarded defendant only 49 days of actual
custody credit for the time he spent in custody before the July 21, 2005 plea hearing plus
9 days of conduct credit, for a total of 58 days of credit. The court indicated it was
limiting defendant’s conduct credit to 20 percent because of a prior strike in Oregon.




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

                                               2
                                          DISCUSSION
       Defendant contends, and the Attorney General concedes, that (1) he was entitled to
an additional 180 days of actual custody credit for the time he spent in the SAFE program
and (2) the trial court erred in limiting his conduct credit to 20 percent. We find the
concessions appropriate.
       A. 180 Days of Actual Credit
       Section 2900.5 provides, in pertinent part: “(a) In all felony and misdemeanor
convictions, . . . when the defendant has been in custody, including . . . any time spent in
a jail, . . . rehabilitation facility, . . . or similar residential institution, all days of custody
of the defendant . . . shall be credited upon his or her term of imprisonment . . . .” Time
spent in a residential treatment program as a condition of probation qualifies for
presentence custody credit under section 2900.5, subdivision (a). (People v. Jeffrey
(2004) 33 Cal.4th 312, 318; People v. Johnson (2002) 28 Cal.4th 1050, 1053; People v.
Davenport (2007) 148 Cal.App.4th 240, 245.)
       Defendant completed the SAFE program, which was a 180-day residential
treatment program. Furthermore, at the time of the plea hearing, all parties understood
that part of defendant’s 365-day jail sentence could be served in the SAFE program.
Accordingly, defendant was entitled to the additional 180 days of actual custody credit,
for a total of 229 days of actual custody credit.
       B. Limitation on Defendant’s Conduct Credit
       The trial court believed that defendant’s conduct credit should be limited to
20 percent because of a prior strike in Oregon. However, there is nothing in the record
indicating a valid basis for this limitation.
       Although section 2933.1 requires that a trial court impose a limitation on the
accrual of presentence conduct credit, that section provides that conduct credit shall be
limited to 15 percent, not 20 percent, and the statute only applies when the defendant is
convicted of a “violent felon[y]” under the meaning of section 667.5. None of

                                                  3
defendant’s offenses involved violent felonies listed in section 667.5, subdivision (c), and
thus, section 2933.1 does not apply.
       Therefore, because there was no valid basis for the 20 percent credit limitation,
defendant was entitled to additional conduct credit under section 4019. (See People v.
Dieck (2009) 46 Cal.4th 934, 939.) The version of section 4019 in effect at the time of
defendant’s crime in 2005 provided that a defendant could earn conduct credit at a rate of
two days for every four-day period of actual custody. (Stats. 1982, ch. 1234, § 7.) As
discussed, defendant should have been awarded 229 days of actual custody credit.
Accordingly, defendant was entitled to 114 days of conduct credit.2




       2
       We calculate that 229 days of actual custody credit divided by four, rounded
down to the next whole number yields 57 days, which is then multiplied by two to yield
114 days of conduct credit.

                                             4
                                    DISPOSITION
      The judgment is modified to reflect that defendant is entitled to 343 days of credit
(229 days of actual custody credit and 114 days of conduct credit). As modified, the
judgment is affirmed.




                                  ___________________________________________
                                  BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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