Filed 7/3/13 P. v. Koontz CA2/6
Opinion following remand from Supreme Court
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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. B224697
                                                                            2d Crim. No. B224701
    Plaintiff and Respondent,                                            (Super. Ct. No. 2009029278 )
                                                                         (Super. Ct. No. 2009002554)
v.                                                                            (Ventura County)
                                                                                ON REMAND
TREVOR LEE KOONTZ,

    Defendant and Appellant.




                   This case is before us on remand from the California Supreme Court to
reconsider the cause in light of People v. Brown (2012) 54 Cal.4th 314 and People v. Lara
(2012) 54 Cal.4th 896. (Cal. Rules of Court, rule 8.528(d). Having read and considered the
supplemental briefs, we vacate our prior decision and conclude that appellant is not entitled
to enhanced conduct credits under former Penal Code section 4019 which was in effect on
January 25, 2010.1 (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.)
                                           Facts and Procedural History
                   In exchange for an indicated three-year sentence, Trevor Lee Koontz pled
guilty in case number 2009029278 to felony child endangerment (Pen. Code, § 273a, subd.
(a)), and admitted a prior serious felony conviction (§§ 667, subds. (a)(1) & (e)(1); 1170.12,


1   All statutory references are to the Penal Code unless otherwise stated.
subds. (a)(1) & (c)(1)) and admitted suffering two prior prison terms (§ 667.5, subd. (b)).
The trial court struck the prior serious felony conviction and a prior prison term. On March
16, 2010, it sentenced appellant to three years state prison. The court awarded 219 days
actual credit plus 108 days conduct credit (§ 4019, subds. (b)(2) & (c)(2)) but ruled that
appellant was not eligible to receive one-for-one conduct credits (an additional 108 days
conduct credit) due to the prior serious felony strike conviction.2
               Appellant argued that the order striking the prior conviction entitled him to
"one-for-one credits under PC 4019, as it's currently written." Denying the request, the trial
court stated: "I did take a look at the Code section [§ 4019] again. If it satisfies you, I will
confess . . . that it continues to be subject to interpretation . . . , but that's how I read the
Code, sir."
                                       Former Section 4019
               Effective January 25, 2010, section 4019 was amended to provide that certain
defendants may earn presentence credit at the rate of two days for every two days in
custody, commonly referred to as "one-for-one credits." The Legislature said: "It is the
intent of the Legislature that if all days are earned under this section, a term of four days
will be deemed to have been served for every two days spent in actual custody, except that a
term of six days will be deemed to have been served for every four days spent in actual
custody for persons described in paragraph (a) of subdivision (b) or (c)." Thereafter on
September 28, 2010, the Legislature deleted "one-for-one credits." (See People v. Brown,
supra, 54 Cal.4th at p. 318, fn. 3 [discussing legislative history].)
               In People v. Brown, supra, 54 Cal.4th 314, our Supreme Court concluded that
the January 25, 2010 version of section 4019 only applies to time in custody after its

2 Appellant admitted violating probation in a second case (Case No. 2009002554) following
a plea of guilty to felony child endangerment (§ 273a, subd. (a)) and possession of a
controlled substance (Health & Saf. Code § 11377, subd. (a)). At a combined sentencing
hearing, the trial court revoked probation and sentenced appellant to two years on the child
endangerment count and a 16 month concurrent term on the controlled substance count, and
ordered the sentence to be served concurrent with the three year sentence in case number
2009029278. Appellant appealed from the denial of one-for-one conduct credits in the
second case (B224701) which was ordered consolidated with this appeal.


                                                  2
operative date. (Id., at p. 322-323.) "To apply former section 4019 prospectively
necessarily means that prisoners whose custody overlapped the statute's operative date (Jan.
25, 2010) earn credit at two different rates." (Id., at p. 322.)
              That is the case here. Appellant served 144 days actual custody in 2009 and
75 days actual custody in 2010 before he was sentenced to state prison. He is not entitled to
enhanced one-for-one conduct credits for time in custody before January 25, 2010. (Id., at
p. 318; see Couzens & Bigelow, Awarding Custody Credits (Feb. 2013) pp. 8-9, available
online at http://www.courts.ca.gov/partners/documents/Credits_Memo.pdf.)
              The January 25, 2010 version of section 4019 provides that defendants with a
prior serious or violent felony conviction are not eligible to receive enhanced one-for-one
conduct credits. (Former § 4019, subds. (b)(2) & (c)(2).) In People v. Lara, supra, 54
Cal.4th 896, our Supreme Court held that a trial court does not have authority under section
1385 to disregard historical facts that disqualify a defendant from earning enhanced one-for-
one conduct credits under former section 4019. (Id., at p. 900.) Appellant has a
disqualifying 1997 serious felony conviction. The trial court struck the prior serious felony
conviction under section 1385 to avoid doubling appellant's prison sentence (§ 1170.12,
subd. (c)(1)) and correctly found that appellant was not entitled to enhanced one-for-one
conduct credits. (Id., at p. 906.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                           YEGAN, J.

We concur:


              GILBERT, P.J.


              PERREN, J.




                                                3
                                   Bruce Young, Judge
                             Superior Court County of Ventura
                           ______________________________




             California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for
Defendant and Appellant.


             Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance C. Winters,
Senior Assistant Attorneys General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys
General, for Plaintiff and Respondent.




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