Filed 3/25/13 P. v. Flaata CA2/6
                NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B239300
                                                                          (Super. Ct. No. F466777)
     Plaintiff and Respondent,                                            (San Luis Obispo County)

v.

DOUGLAS RAY FLAATA,

     Defendant and Appellant.


                   Douglas Ray Flaata appeals a judgment entered following his nolo
contendere plea to one count of elder abuse, with an admission that his victim
suffered great bodily injury. (Pen. Code, § 368, subd. (b)(1), (2).)1 We conclude
that the trial court properly awarded Flaata only 15 percent presentence conduct
credit, and affirm. (§§ 2933.1, 667.5, subd. (c)(8).)
                                 FACTS AND PROCEDURAL HISTORY
                   On October 23, 2011, Flaata assaulted his longtime girlfriend E.W.
According to the probation report, Flaata choked E.W. into unconsciousness, tore
"clumps" of hair from her head, hit her in the face, kicked her in the head, and struck
her with a chair and his fist. E.W. was airlifted to a hospital, where she spent two



1
    All further statutory references are to the Penal Code unless stated otherwise.
days recovering from her injuries, including cracked ribs. At the time, E.W. was 74
years old and had been assaulted by Flaata on prior occasions.
              By felony complaint, the prosecutor charged Flaata with elder abuse
(count 1), making criminal threats (count 2), and inflicting corporal injury upon a
spouse or cohabitant (count 3). (§§ 368, subd. (b)(1), 422, 273.5, subd. (a).) The
prosecutor also alleged that E.W. suffered great bodily injury, that Flaata personally
inflicted great bodily injury upon E.W., and that Flaata served a prior prison term.
(§§ 368, subd. (b)(2), 12022.7, 667.5, subd. (b).)2
              On November 21, 2011, Flaata waived his constitutional rights and
right to a preliminary examination, and pleaded nolo contendere to elder abuse
(count 1), and admitted that E.W. suffered great bodily injury. (§ 368, subd. (b)(1),
(2).) The plea agreement provided for a seven-year prison term and dismissal of the
remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754,
758. During the plea colloquy, the trial court advised Flaata that he was "entering a
plea of no-contest to count 1 which requires the [district attorney] to prove that the
crime is an act that you committed under circumstances likely to produce great
bodily harm or death, that you inflicted some sort of pain, mental suffering on this
person whose age is over 70 years."3 Flaata responded that he understood the
charges to which he was pleading.
              On January 30, 2012, the trial court sentenced Flaata to seven years
imprisonment, including two years for elder abuse and five years for the great bodily
injury allegation. (§ 368, subd. (b)(1), (2)(B).) The court imposed a $1,400
restitution fine, and a $1,400 parole revocation restitution fine (stayed). (§§ 1202.4,
subd. (b), 1202.45.) It awarded Flaata 100 days of actual presentence custody credit
2
  References to section 12022.7 are to the version in effect prior to repeal effective January
1, 2012.
3
  The felony complaint charged that Flaata "knowingly and willfully cause[d] and
permit[ted]" the victim to suffer "and inflicted thereon, unjustifiable physical pain and
mental suffering."
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and 15 days of conduct credit pursuant to section 2933.1, subdivision (a), which
limits worktime credit for persons convicted of specified felonies. The court denied
Flaata's motion to award conduct credit pursuant to section 4019, but granted his
request for a certificate of probable cause regarding the issue.
             Flaata appeals and contends that he is not subject to the 15 percent
limitation on conduct credit pursuant to section 2933.1, subdivisions (a) and (c).
                                     DISCUSSION
             Flaata argues that section 2933.1 applies only to the 23 violent felonies
enumerated in section 667.5, subdivision (c), and infliction of great bodily injury
upon an elder person is not an enumerated felony. (§ 368, subd. (b)(1), (2).) He
concedes that section 667.5, subdivision (c)(8) lists "[a]ny felony in which the
defendant inflicts great bodily injury," but points out that the statute states that the
allegation must be "charged and proved as provided for in Section 12022.7." Flaata
contends that sections 2933.1 and 667.5, subdivision (c)(8) are clear and
unambiguous, thus allowing him the increased conduct credits provided by section
4019, subdivision (f). (People v. Wade (2012) 204 Cal.App.4th 1142, 1149
["'Where the statute is clear, courts will not "interpret away clear language in favor
of an ambiguity that does not exist"'"].)
             Flaata adds that section 368, subdivision (j) expressly permits
prosecution pursuant to "both [section 368] and . . . [section] 12022.7," thus
supporting his argument that the sections do not punish "necessarily identical
offenses." He also argues that the section 368, subdivision (b)(2) enhancement does
not require the personal infliction of great bodily injury, as does section 12022.7.
             Section 2933.1, subdivision (a) provides: "Notwithstanding any other
law, any person who is convicted of a felony offense listed in subdivision (c) of
Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in
Section 2933." Section 2933.1 belongs to a group of statutes limiting or prohibiting

                                            3
earning of presentence and postsentence credit for persons who are convicted of
crimes and sentenced to prison. (In re Pope (2010) 50 Cal.4th 777, 781.)
             Section 667.5, subdivision (c) does not expressly list elder abuse
pursuant to section 368 as an enumerated offense. The catchall provision of section
667.5, subdivision (c)(8), however, includes as a violent offense "[a]ny felony in
which the defendant inflicts great bodily injury on any person other than an
accomplice which has been charged and proved as provided for in Section
12022.7 . . . ." Section 12022.7, subdivision (c) provides for a five-year
enhancement (as does section 368, subdivision (b)(2)(B)) for "[a]ny person who
personally inflicts great bodily injury on a person who is 70 years of age or older,
other than an accomplice, in the commission of a felony or attempted felony . . . ."
             The trial court properly limited Flaata’s conduct credit because he
pleaded nolo contendere to section 368, subdivision (b)(1) and (2), which, when
read together, provide the necessary elements of section 12022.7. Section 368,
subdivision (b)(1) punishes a person who “willfully causes . . . or inflicts” pain or
suffering upon an elder person. The court advised Flaata that he was entering a nolo
contendere plea admitting that he “inflicted some sort of pain, mental suffering” on
an elder person. Flaata stated that he understood. He also admitted the five-year
bodily injury enhancement of section 368, subdivision (b)(2)(B) that his victim
"suffer[ed] great bodily injury." By his plea, Flaata admitted every element of the
charged offense and its enhancement. (Boykin v. Alabama (1969) 395 U.S. 238,
242.) The "charged and proved" requirement of section 667.5, subdivision (c)(8)
has been satisfied.
             Well-established rules of statutory construction require that we
determine the Legislature's intent in enacting a statute and adopt the construction
that best effectuates the law's purpose. (Kibler v. Northern Inyo County Local
Hospital Dist. (2006) 39 Cal.4th 192, 199.) In so doing, we look to the statutory

                                           4
language, giving the words their ordinary and usual meaning. (Ibid.) The
Legislature's stated intent in punishing elder abuse is to accord "special
consideration and protection" to crimes against elderly and dependent adults.
(§ 368, subd. (a).) Sections 368, subdivision (b)(2) and 12022.7, subdivision (c)
each impose a five-year term for causing bodily injury to an elderly person.
Application of a more lenient conduct credit to section 368 would not effectuate the
stated legislative intent.
              Flaata asserts that rejection of his argument results in any criminal
offense that defines great bodily injury by reference to section 12022.7 becoming a
violent felony pursuant to section 667.5, subdivision (c)(8), e.g., Welfare and
Institutions Code section 14107, subdivision (d) (Medi-Cal fraud that causes great
bodily injury). Interpretation of that section is not before us. More importantly,
however, by his plea, Flaata admitted inflicting pain and suffering on E.W., causing
her great bodily injury.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                        GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.



                                            5
                              Barry T. LaBarbera, Judge

                      Superior Court County of San Luis Obispo

                        ______________________________


              Mark R. Feeser, under appointment by the Court of Appeal, for Defendant
and Appellant.



              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James
William Bilderback II, Supervising Deputy Attorney General, for Plaintiff and
Respondent.




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