Filed 4/3/13 P. v. Vasquez 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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B237778
                                                                            (Super. Ct. No. 2011005801)
     Plaintiff and Respondent,                                                   (Ventura County)

v.

JORGE VASQUEZ,

     Defendant and Appellant.



                   Jorge Vasquez (Vasquez) challenges the trial court's calculation of
presentence conduct credits and the sufficiency of the evidence underlying one of
his three convictions. We modify the judgment to include additional conduct
credits, but otherwise affirm.
                               FACTS AND PROCEDURAL HISTORY
                   On January 25, 2011, Vasquez approached his former girlfriend,
Brianna Hernandez, in the parking lot outside the Vons market where she worked.
Vasquez grabbed for her car keys. They struggled over them, back and forth, for
more than 30 seconds before Vasquez wrested them from her. After Hernandez fled
into the Vons, Vasquez drove off in her car without her permission. Vasquez
returned the car several minutes later, but he had damaged the car and taken some
of Hernandez's personal property.
                 Among other things, Vasquez was charged with felony unlawful
taking of a vehicle (Veh. Code, § 10851); felony vandalism (Pen. Code, § 594); 1
and misdemeanor battery (§ 243, subd. (e)(1)). The jury convicted Vasquez of all
three crimes.2
                 Vasquez was sentenced on October 6, 2011. The trial court imposed
the upper term sentence of three years on the unlawful taking count, followed by a
consecutive eight months term (one-third the two-year midterm) on the vandalism
count. Citing section 654, the court stayed the concurrent, 180-day sentence it
imposed on the misdemeanor. The court ordered Vasquez to serve his time in the
county jail rather than state prison. (§ 1170, subd. (h)(3).)
                 The court awarded Vasquez 235 days of presentence credits for the
time he actually spent in local custody and 116 days of conduct credits. The court
applied a formula that awarded one day of conduct credit for every two days of
actual custody.
                                        DISCUSSION
                        I. Calculation of Presentence Conduct Credits
                 Vasquez argues that the trial court erred in awarding him only one day
of conduct credit for each two days of actual custody time. Vasquez asserts that the
trial court's resort to this rate was dictated by the Realignment Act of 2011 (Act).
Because he would have received twice as many conduct credits under pre-Act law,
and because the Act was enacted after he committed his crimes, Vasquez contends
that the Act constitutes an unconstitutional ex post facto law and otherwise violates
equal protection.


                 1
                     All statutory references are to the Penal Code unless otherwise
stated.
                 2
                The jury hung on a carjacking charge (§ 215), and acquitted Vasquez
of a simple battery charge arising out of Vasquez's alleged conduct in throwing the
car keys at Hernandez after he returned the car.


                                               2
               We need not reach Vasquez's constitutional claims because the Act
preserves his entitlement to accrue conduct credits at the pre-Act rate. The Act
provides that "[a]ny days earned by a prisoner prior to October 1, 2011, shall be
calculated by the rate required by the prior law." (§ 4019, subd. (h).) In People v.
Hul (2013) __ Cal.App.4th __ [2013 Cal. App. LEXIS 60, at pp. 5-7], the court
interpreted this provision to guarantee that a defendant, like Vasquez, who commits
his crime before the Act's passage but who is sentenced thereafter, still earns
conduct credits at the pre-Act rate. We agree with Hul. Vasquez is accordingly
entitled to 235 days of conduct credits, for a total of 470 days of credit.
                             II. Sufficiency of the Evidence
               Vasquez also challenges the evidence supporting his misdemeanor
domestic violence battery conviction. In evaluating this claim, we examine only
"'. . . whether there is substantial evidence, i.e., evidence from which a reasonable
trier of fact could conclude that the prosecution sustained its burden of proof
beyond a reasonable doubt. . . .' [Citation]" (People v. Assad (2010) 189
Cal.App.4th 187, 194.) We review the evidence in the light most favorable to the
verdict and assess solely whether the supporting evidence is "'. . . reasonable,
inherently credible, and of solid value . . . .'" (Ibid.)
               Vasquez argues that the People did not adduce sufficient evidence that
he ever touched Hernandez during the struggle over her car keys. "A battery is any
willful and unlawful use of force or violence upon the person of another." (§ 242.)
This requires "a touching of the victim." (People v. Marshall (1997) 15 Cal.4th 1,
38.) "[T]he least touching" will suffice. (People v. Mansfield (1988) 200
Cal.App.3d 82, 88.)
               Vasquez and Hernandez "struggled" for at least 30 seconds, back and
forth, before Vasquez succeeded in wresting the car keys from her. Given that they
were struggling over car keys, it is reasonable for the jury to infer from the
testimony that Vasquez touched Hernandez in the midst of their struggle.
Moreover, there is little doubt that he applied force to her during the struggle, which


                                             3
is itself sufficient. (People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. 17 ["A
defendant can commit a battery indirectly by causing the force to be applied to the
person of another"].)
                                   DISPOSITION
              We modify the abstract of judgment to reflect 235 days of conduct
credit, for a total of 470 days of custody credit. The Superior Court Clerk shall
prepare an amended abstract of judgment incorporating this change and forward a
certified copy to the Department of Corrections and Rehabilitation. As so modified,
the judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          HOFFSTADT, J.*


We concur:



              GILBERT, P. J.



              PERREN, J.




              * (Judge of the Superior Court of Los Angeles County, assigned by
the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)


                                          4
                           Patricia M. Murphy, Judge
                       Superior Court County of Ventura
                      ______________________________



             Gerald Peters, 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, Margaret
E. Maxwell, Supervising Deputy Attorney General, Chung L. Mar, Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
