Filed 9/15/15 P. v. Pyles 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061715

v.                                                                       (Super.Ct.No. FVI1203257)

MITCHELL PYLES,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed as modified.

         Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon and Barry Carlton,

Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Mitchell Pyles is serving 15 years to life after pleading no contest to

sexual penetration of a child age ten or under. Defendant’s sole claim on appeal is that

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the trial court failed to credit him with any of the 88 days of presentence conduct credits

to which he was entitled. The People agree, as does this court, that defendant is entitled

to 88 days of such credits.

                               PROCEDURAL BACKGROUND

       On September 16, 2013, defendant pled no contest to sexual penetration of a child

age ten or under. (Pen. Code, § 288.7, subd. (b)1 The plea form indicates defendant

would receive pre-sentence conduct credits under section 2933.1.

       On July 25, 2014, the trial court heard and denied defendant’s motion to withdraw

his plea. Also on that date, the court sentenced defendant to 15 years to life in prison.

The court credited defendant with 591 days of actual presentence custody credit. Defense

counsel requested 15 percent conduct credits, which the People opposed, but the court

declined to award defendant any conduct credits.

       This appeal followed.

                                            DISCUSSION

       Defendant argues, the People concede, and this court agrees, that the trial court

erred in failing to award him 88 days of pre-trial conduct credit pursuant to sections 4019

and 2933.1.

       The California Supreme Court has stated: “‘[T]he court imposing a sentence’ has

responsibility to calculate the exact number of days the defendant has been in custody

‘prior to sentencing,’ add applicable good behavior credits earned pursuant to section


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


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4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d) . . . .)”

(People v. Buckhalter (2001) 26 Cal.4th 20, 30.)

       Section 4019, subdivision (f) provides that “a term of four days will be deemed to

have been served for every two days spent in actual custody” for all days spent in local

custody from the date of arrest to the sentencing date. For “violent felonies,” however,

the credit is limited to 15 percent of the actual custody time. (§ 2933.1, subd. (c).)

Defendant pled guilty to violating section 288.7, subdivision (b). Because this crime

involved penetration, it is a “violent felony” under section 667.5, subd. (c)(11) and thus

falls within the 15 percent conduct credits restriction set forth in section 2933.1,

subdivision (c).

       Such credits apply to indeterminate life sentences such as defendant’s sentence of

15 years to life. (People v. Brewer (2011) 192 Cal.App.4th 457, 462-464.)

       For these reasons, defendant should have been credited with an additional 88 days,

calculated as 591 actual presentence days multiplied by 0.15.

                                            DISPOSITION

       The judgment is modified to award defendant 88 days of presentence conduct

credits in addition to the 591 days of presentence custody credits, for a total of 679 days.

The superior court clerk is directed to amend the July 25, 2014, sentencing hearing

minute order and the abstract of judgment to reflect the same. The superior court clerk is

also directed to forward a certified copy of the amended abstract of judgment and minute

order to the Department of Corrections and Rehabilitation. The judgment as thus

modified is affirmed.


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     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               RAMIREZ
                                                         P. J.


We concur:

HOLLENHORST
                  J.

CODRINGTON
                  J.




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