Filed 7/9/15 P. v. Phillips CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076333

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F02536)

         v.

SIR-NIKKO DESHUN PHILLIPS,

                   Defendant and Appellant.




         Defendant Sir-Nikko Deshun Phillips contends the trial court erred by denying
him presentence conduct credit without written notice and an opportunity to be heard.
The People agree but add (without authority) that we should remand for a credit hearing
rather than modifying the judgment ourselves.




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       We conclude the trial court erred in denying defendant credit and will modify the
judgment to award defendant 51 days of presentence conduct credit pursuant to Penal
Code section 2933.1.1
                                      DISCUSSION
       We dispense with a detailed factual recitation as unnecessary to the resolution of
this appeal. Suffice it to say that defendant was sentenced to 19 years in state prison
pursuant to a plea agreement under which he pleaded no contest to assault with a
semiautomatic firearm (§ 245, subd. (b)) and admitted personal use of the firearm in the
commission of the assault (§ 12022.5) in exchange for a dismissal of other charges. The
trial court awarded defendant 345 days of presentence custody credit for his time actually
spent in custody (actual credit), but declined to award defendant any presentence conduct
credit (conduct credit), finding defendant was not entitled to conduct credit under section
2933.1 because he “did not satisfactorily perform work as assigned by the sheriff and
refused to satisfactorily comply with the reasonable rules of the sheriff, as evidenced by
the numerous disciplinary reports documented in the probation report.”
       Pursuant to section 4019, a defendant is entitled to conduct credit unless the
defendant fails to perform labor as directed by or to comply with the rules and regulations
of the custodial facility. Section 2933.1, subdivision (c) limits the maximum conduct
credit a person convicted of a violent felony, like defendant, may earn to 15 percent of
the actual period of confinement. The award of conduct credit pursuant to these sections
is not a discretionary matter. (People v. Goldman (2014) 225 Cal.App.4th 950, 961.)
Thus, despite defendant’s failure to object when the trial court declined to award any
conduct credit pursuant to section 2933.1, his claim is not forfeited. (Goldman, at
p. 961.)



1 Further undesignated statutory references are to the Penal Code in effect at the time
defendant was charged.

                                             2
       Presentence conduct credit is awarded by the court “based on the sheriff’s report
of ‘the number of days that [the] defendant has been in custody and for which he or she
may be entitled to credit,’ and only after hearing any challenges to the report.” (People v.
Lara (2012) 54 Cal.4th 896, 903.) “[B]efore a sentencing court may withhold conduct
credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the
findings of his jail violations, and (2) present any mitigating factors.” (People v. Duesler
(1988) 203 Cal.App.3d 273, 277 (Duesler).)
       A presentence probation report may be used to notify the defendant that his
conduct credit is in jeopardy. (Duesler, supra, 203 Cal.App.3d at p. 277.) But where, as
here, the defendant’s behavioral problems in jail are documented without any
recommendation that credit be withheld, the probation report is not sufficient to satisfy
due process notice requirements. (Ibid.) Nor did defendant receive any other form of
notice that his conduct credit was in jeopardy prior to the sentencing hearing. Therefore,
the trial court erred in failing to award conduct credit.
       The People bear the burden to show that a defendant is not entitled to conduct
credit. (Duesler, supra, 203 Cal.App.3d at p. 276.) Here, neither the Sheriff nor the
People made any effort to provide the requisite notice to defendant or to otherwise prove
that defendant should be denied his earned conduct credit. Nor is there any dispute about
the number of days of conduct credit to which defendant was entitled pursuant to section
2933.1, absent unnoticed deprivation. Accordingly, we decline to remand. We will
modify the judgment to award defendant 51 days of conduct credit based on his 345 days
of actual credit.




                                               3
                                     DISPOSITION
      The judgment is modified to award defendant 51 days of presentence conduct
credit pursuant to section 2933.1. As modified, the judgment is affirmed. The trial court
is directed to prepare an amended abstract of judgment and to send a certified copy to the
Department of Corrections and Rehabilitation.




                                                       DUARTE               , J.



We concur:



      RAYE                 , P. J.



      ROBIE                , J.




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