Filed 7/3/13 P. v. Harlan CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,
                                                                                       F064877
         Plaintiff and Respondent,
                                                                    (Super. Ct. Nos. 1414349, 1231025,
                   v.                                                      1246735 & 1425708)

CAROL WAYNE HARLAN,                                                                  OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
         Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy
Attorney General, for Plaintiff and Respondent.

                                                        -ooOoo- 

*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
       Defendant challenges the total amount of conduct credits he was awarded for time
spent in county jail prior to commencement of his prison sentence. We find no error and
affirm the trial court’s judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On January 17, 2008, defendant pled guilty in case No. 1231025 to possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)) and admitted three prior
prison term enhancements (Pen. Code, § 667.5, subd. (b)).1 On July 1, 2008, defendant
pled guilty in case No. 1246735 to possession of a dangerous weapon (§ 12020, subd.
(a)(1)) and possession of a controlled substance.2 Defendant also admitted a prison term
enhancement.
       On July 1, 2008, defendant was sentenced to a term of two years in case No.
1246735 for possession of a dangerous weapon. In case Nos. 1246735 and 1231025,
defendant was sentenced to two concurrent terms of two years on the remaining drug
counts. The court imposed a term of one year for a prior prison term enhancement. In
case No. 1246735, defendant was awarded 9 days of actual custody credits and 4 days of
conduct credits. In case No. 1231025, defendant was awarded 159 days of actual custody
credits and 78 days of conduct credits.
       On March 4, 2010, defendant pled no contest in case No. 1414349 to possession of
a controlled substance and admitted multiple prior prison term enhancements. On
December 3, 2010, defendant pled no contest in case No. 1425708 to possession of a
controlled substance and admitted multiple prior prison term enhancements. Defendant


1      All further statutory references are to the Penal Code unless otherwise indicated.
2      In this case, all of defendant’s convictions for possession of a controlled substance
were for violations of Health and Safety Code section 11377, subdivision (a). In some
actions, defendant also admitted misdemeanor allegations that are not relevant to the
issue raised in this appeal.


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was sentenced on September 2, 2011, to prison for two years for one narcotics offense
and to a consecutive term of one year for a prior prison term enhancement. Defendant
was sentenced to a concurrent sentence of two years for the second narcotics offense. In
case No. 1414349, the court awarded actual custody credits of 73 days and conduct
credits of 72 days. In case No. 1425708, the court awarded 75 days of actual custody
credits and 75 days of conduct credits.3
       Pursuant to amendments to section 4019, defendant filed a motion on January 18,
2012, to correct the abstract of judgment with regard to the credits awarded in case Nos.
1231025 and 1246735.4 On March 9, 2012, the trial court denied defendant’s motion
without prejudice pending the California Supreme Court’s decision in People v. Brown
(2012) 54 Cal.4th 314, 319-330 (Brown).
       On appeal, defendant contends the current version of section 4019, properly
interpreted, entitles him to two days of presentence conduct credits for every two-day
period of confinement and to interpret it otherwise violates equal protection.
                                      DISCUSSION
       Defendant acknowledges in his opening brief that Brown had just been decided
prior to the filing of his brief and the decision is adverse to his contention. Defendant
notes that Brown was not yet final when he filed his brief.
       Defendant’s claim that he is entitled to additional custody credits pursuant to
legislative amendments to section 4019 in January 2010 was rejected on both statutory
construction and equal protection grounds by the California Supreme Court in Brown,

3     Defendant does not challenge the trial court’s award of custody credits in case
Nos. 1414349 and 1425708.
4      Under the formula applied to defendant in case Nos. 1231025 and 1246735, the
actual number of custody days are divided by four, the remainder if any is dropped, and
the resulting whole number quotient is multiplied by two to obtain the number of conduct
credits. (People v. Culp (2002) 100 Cal.App.4th 1278, 1283.)


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supra, 54 Cal.4th at pages 319-330. The Brown decision is dispositive of defendant’s
contentions and we are bound by our high court’s opinion. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
                                    DISPOSITION
      The judgment is affirmed.




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