Filed 5/21/13 P. v. Negrette CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037760
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS090134A,
                                                                     SS110536A)
         v.

JOSE GUILLERMO NEGRETE,

         Defendant and Appellant.



                                                I. INTRODUCTION
         Defendant Jose Guillermo Negrete appeals after pleading no contest to receipt of
stolen property (Pen. Code, § 496, subd. (a))1 in case No. SS090134A, to unlawful sexual
intercourse with a minor (§ 261.5, subd. (c)) in case No. SS110536A, and to
misdemeanor violations of sections 415, subdivision (1) and 148, subdivision (a)(1) in a
third case. Defendant was sentenced in the two felony cases to two years eight months in
jail pursuant to section 1170, subdivision (h).
         On appeal, defendant contends that he is entitled to additional presentence
conduct credit in the receipt of stolen property case (No. SS090134A) pursuant to the
January 2010 version of section 4019. Defendant further contends that he is entitled to



         1
             All further statutory references are to the Penal Code unless otherwise indicated.
monetary credit under section 2900.5, subdivision (a) toward fines and fees in that case
and in the unlawful sexual intercourse case (No. SS110536A) for any excess time that he
spent in custody.
       For reasons that we will explain, we will modify the judgment in the receipt of
stolen property case (No. SS090134A) by awarding defendant a total of 226 days conduct
credit and affirm the judgment as so modified. In the unlawful sexual intercourse case
(No. SS110536A), we will affirm the judgment.
                    II. FACTUAL AND PROCEDURAL BACKGROUND
       A. Receipt of Stolen Property Case (No. SS090134A)
       In mid-2009, in case No. SS090134A, defendant was charged by complaint with
vehicle theft (Veh. Code, § 10851, subd. (a); count 1) and misdemeanor driving without a
license (Veh. Code, § 12500, subd. (a); count 2). The complaint was subsequently
amended to add count 3, receipt of stolen property (§ 496, subd. (a)). Defendant pleaded
no contest to count 3. On October 1, 2009, the trial court suspended imposition of
sentence and placed defendant on probation for three years with various terms and
conditions, including that he serve 180 days in county jail. The court granted defendant
60 days of custody credits, consisting of 40 actual days plus 20 days conduct credit.
Defendant was ordered to pay various fines and fees. The remaining counts were
dismissed.
       In April 2010, the probation department filed a petition alleging that defendant had
violated his probation. Defendant admitted violating his probation. The trial court
revoked and reinstated probation with modified terms and conditions.
       In August 2010, the probation department filed a second petition alleging that
defendant had violated his probation. Probation was summarily revoked and a bench
warrant was issued after defendant failed to appear at a hearing on the petition. After
defendant was in custody, he admitted violating his probation. The trial court reinstated
probation with modified terms and conditions. Defendant was to serve 30 days in jail.

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The court granted defendant 27 days of custody credits, consisting of 19 actual days plus
8 days conduct credit.
       B. Misdemeanor Case (No. MK087513A)
       In January 2011, the probation department filed a third petition in the receipt of
stolen property case alleging that defendant had violated probation by failing to obey all
laws. The new offenses apparently took place in January 2011 and resulted in defendant
being charged in a new case, No. MK087513A.2 Defendant pleaded no contest in the
new case to misdemeanor violations of sections 415, subdivision (1) and 148,
subdivision (a)(1), and he admitted violating his probation in the receipt of stolen
property case (No. SS090134A).
       C. Unlawful Sexual Intercourse Case (No. SS110536A)
       Before defendant was sentenced in the receipt of stolen property and misdemeanor
cases, in March 2011 the probation department filed a fourth petition in the receipt of
stolen property case alleging that defendant had violated his probation by failing to obey
all laws. Defendant was subsequently charged by complaint in a new case,
No. SS110536A, with three counts of unlawful sexual intercourse with a minor (§ 261.5,
subd. (c)). The complaint further alleged that as to count 2, defendant personally
inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8),
667.5, subd. (c)(8)). Defendant pleaded no contest to count 1, which was based on an
incident that took place on or about January 2010. Defendant also admitted violating his
probation in the receipt of stolen property case (No. SS090134A).
       A combined sentencing hearing was held in May 2011. In the most recent case,
the unlawful sexual intercourse case (No. SS110536A), the trial court suspended
imposition of sentence and placed defendant on probation for three years with various


       2
         The factual and procedural background concerning case No. MK087513A is
taken from the record in case Nos. SS090134A and SS110536A.

                                             3
terms and conditions, including that he serve 132 days in county jail. The court granted
defendant 132 days of custody credits, consisting of 66 actual days plus 66 days conduct
credit. Defendant was ordered to pay various fines and fees. The remaining counts were
dismissed. In the misdemeanor case (No. MK087513A), defendant was placed on
probation with various terms and conditions, including that he serve two days with credit
for two days. In the receipt of stolen property case (No. SS090134A), the court reinstated
probation with modified terms and conditions, including that he serve 365 days in county
jail. The court granted defendant 314 days of custody credits, consisting of 210 actual
days plus 104 days conduct credit.
       D. Most Recent Probation Violations and Sentencing
       In late 2011, the probation department filed petitions in the receipt of stolen
property case (No. SS090134A) and the unlawful sexual intercourse case
(No. SS110536A) alleging that defendant had violated his probation. Defendant admitted
violating his probation in each case.
       A combined sentencing hearing was held on November 29, 2011. Defendant was
sentenced in the two felony cases to a total term of two years eight months in jail
pursuant to section 1170, subdivision (h). The sentence was calculated as follows. In the
receipt of stolen property case (No. SS090134A), the trial court sentenced defendant to
the middle term of two years. The court granted defendant 434 days of custody credits,
consisting of 290 actual days plus 144 days conduct credit. Defendant was ordered to
pay a fine. In the unlawful sexual intercourse case (No. SS110536A), the court sentenced
defendant to eight months (one-third the middle term) consecutive to the term in the
receipt of stolen property case. No custody credits were awarded in the unlawful sexual
intercourse case. Defendant was ordered to pay a fine. In the misdemeanor case
(No. MK087513A), the court stated it would “terminate probation with . . . 81 days[]
credit, 54 actual, 27 conduct credits.”



                                              4
       On January 4, 2012, after filing a notice of appeal, defendant filed an amended
notice of appeal in the receipt of stolen property case (No. SS090134A) and the unlawful
sexual intercourse case (No. SS110536A).
       E. Motion for Additional Conduct Credit
       In March 2012, defendant filed a motion in the trial court seeking (1) correction of
clerical error in the abstract of judgment regarding custody credits, and (2) additional
conduct credit based on various versions of section 4019 and the state and federal equal
protection clauses.
       At a subsequent hearing, the district attorney conceded that there was clerical error
in the abstract of judgment concerning custody credits. The abstract of judgment was
thereafter amended to correct the clerical error.
       The district attorney eventually filed written opposition to defendant‟s motion for
additional conduct credit under section 4019 and equal protection principles. Following a
hearing on the motion, the trial court took the matter under submission. The court denied
defendant‟s motion by written order, concluding that defendant was not entitled to
additional conduct credit in either the receipt of stolen property case (No. SS090134A) or
the unlawful sexual intercourse case (No. SS110536A).
       On September 24, 2012, defendant filed a notice of appeal regarding the trial
court‟s order.
                                     III.   DISCUSSION
       Defendant contends that the trial court should have calculated his conduct credit in
the receipt of stolen property case (No. SS090134A) pursuant to the January 2010 version
of section 4019 for his time in custody after January 25, 2010. Under this version of
section 4019, defendant argues that he is entitled to a total of 226 days conduct credit,
rather than the 144 days granted by the court. Defendant further contends that he is
entitled to monetary credit under section 2900.5, subdivision (a) toward fines and fees in



                                              5
that case and in the unlawful sexual intercourse case (No. SS110536A) for “any excess
time” that he spent in custody.
       The Attorney General contends that defendant has forfeited his claim “because he
failed to move for correction of the record to modify credits in the trial court.” To the
extent the claim has been preserved, the Attorney General contends that defendant is not
entitled to additional conduct credit or that he is entitled to an additional 10 days at most.
       A. Forfeiture
       We determine that defendant has not forfeited his claim. Defendant raised the
issue of additional conduct credit by motion in the trial court. Further, a “narrow
exception” to the forfeiture rule exists for “ „ “unauthorized sentences” or sentences
entered in “excess of jurisdiction.” ‟ [Citation.] Because these sentences „could not
lawfully be imposed under any circumstance in the particular case‟ [citation], they are
reviewable „regardless of whether an objection or argument was raised in the trial . . .
court.‟ [Citation.]” (People v. Smith (2001) 24 Cal.4th 849, 852.) In this case, defendant
essentially contends that the trial court applied the wrong law in calculating his conduct
credit. Defendant may therefore raise the issue on appeal.
       B. Conduct Credit
       In the receipt of stolen property case (No. SS090134A), defendant committed his
offense in 2009, and he thereafter spent varying lengths of time in custody before the
November 2011 sentencing hearing. In denying defendant‟s post-judgment motion for
additional conduct credit under the January 2010 version of section 4019, the trial court
stated that defendant‟s offense predated that amendment to section 4019 and therefore the
conduct credit formula provided by that amendment did not apply.
       The version of section 4019 in effect during 2009 authorized two days of conduct
credit for every four days spent in local custody. (Former § 4019, subd. (f), as amended
by Stats. 1982, ch. 1234, § 7; People v. Brown (2012) 54 Cal.4th 314, 318 & fn. 4
(Brown).) Section 4019 was subsequently amended, operative January 25, 2010, to

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“increas[e] the rate at which prisoners in local custody could earn conduct credits for
good behavior. Under the new formula, eligible prisoners could earn two days of conduct
credit for every two days spent in local custody.[3]” (Brown, supra, at pp. 318-319;
accord, Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.) In Brown, the California
Supreme Court held that the January 2010 version of section 4019 “applied
prospectively, meaning that qualified prisoners in local custody first became eligible to
earn credit for good behavior at the increased rate beginning on the statute‟s operative
date.” (Brown, supra, at p. 318.) The court further explained that “[t]o apply former
section 4019 prospectively necessarily means that prisoners whose custody overlapped
the statute’s operative date (Jan. 25, 2010) earned credit at two different rates.” (Id. at
p. 322, italics added.)
       At the November 2011 sentencing hearing in the receipt of stolen property case
(No. SS090134A), the trial court granted defendant 434 days of custody credits,
consisting of 290 actual days plus 144 days conduct credit. Regarding actual days, the
probation report reflects that defendant was in actual custody for 126 days in 2009, and
for 164 days between June 2010 and November 2011. For the 126 days in actual custody
in 2009, defendant is entitled to 62 days conduct credit. (See Brown, supra, 54 Cal.4th at
p. 318; In re Marquez (2003) 30 Cal.4th 14, 25-26.) For the 164 days in actual custody
between June 2010 and November 2011, defendant is entitled to 164 days conduct credit.
(See Brown, supra, at p. 318.) Thus, defendant is entitled to a total of 226 days conduct




       3
         “The relevant language of former section 4019 provided: „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 . . . .‟ (Former
§ 4019, subd. (f), italics added.) [¶] Prisoners who were required to register as sex
offenders, had been committed for serious felonies, or had prior convictions for serious
or violent felonies were not eligible for credit at the increased rate. (Former § 4019,
subds. (b)(2), (c)(2).) . . .”

                                              7
credit in the receipt of stolen property case, for a total of 516 days of custody credits
(290 days actual plus 226 days conduct credit).
       We understand the Attorney General to contend that defendant “already received
all the credits he is due” in the receipt of stolen property case (No. SS090134A) because
some of those credits were for time periods that overlapped with his time in custody in
the misdemeanor case and/or the unlawful sexual intercourse case. The authority cited by
the Attorney General in support of this argument is the following language from
section 2900.5, subdivision (b): “[C]redit shall be given only where the custody to be
credited is attributable to proceedings related to the same conduct for which the
defendant has been convicted. Credit shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive sentence is imposed.”
The Attorney General fails to identify each of the particular time periods that should not
have been credited toward the receipt of stolen property case (No. SS090134A) and fails
to persuasively articulate why it was error for the trial court to give credit for each of
those time periods.
       The Attorney General next contends that, for the time defendant spent in actual
custody between March 2011 and November 2011, the September 2010 version of
section 4019 (see Stats. 2010, ch. 426, § 2; Brown, supra, 54 Cal.4th at p. 318, fn. 3)
should be used to calculate defendant‟s conduct credit, rather than the January 2010
version. We disagree. The September 2010 version of section 4019 expressly applied
only to defendants who committed their crime on or after the effective date of
September 28, 2010. (Stats. 2010, ch. 426, §§ 2, 5; see Brown, supra, at p. 318, fn. 3.)
Defendant committed his offense in the receipt of stolen property case (No. SS090134A)
in 2009 and committed his offense in the unlawful sexual intercourse case
(No. SS110536A) on or about January 2010.




                                               8
       C. Monetary Credit
       Defendant contends that, “[b]y the time this appeal will be decided, [he] will have
served his sentence already,” and therefore he is entitled to monetary credit of $30 per
day for each day in custody in excess of his sentence pursuant to section 2900.5,
subdivision (a). Defendant requests that this court remand the matter to the trial court “to
reduce his fees and fines accordingly.”
       Section 2900.5, subdivision (a) provides: “In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in custody,
including, but not limited to, any time spent in a jail, . . . all days of custody of the
defendant, including days served as a condition of probation in compliance with a court
order, credited to the period of confinement pursuant to Section 4019, and days served in
home detention pursuant to Section 1203.018, shall be credited upon his or her term of
imprisonment, or credited to any fine on a proportional basis, including, but not limited
to, base fines and restitution fines, which may be imposed, at the rate of not less than
thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence.
If the total number of days in custody exceeds the number of days of the term of
imprisonment to be imposed, the entire term of imprisonment shall be deemed to have
been served. In any case where the court has imposed both a prison or jail term of
imprisonment and a fine, any days to be credited to the defendant shall first be applied to
the term of imprisonment imposed, and thereafter the remaining days, if any, shall be
applied to the fine on a proportional basis, including, but not limited to, base fines and
restitution fines.” (Italics added.) Section 2900.5, subdivision (a) thus expressly requires
a trial court to apply a defendant‟s days of custody credits to the term of imprisonment
first, and then apply any remaining days to any fine imposed on the defendant. (See
People v. Robinson (2012) 209 Cal.App.4th 401, 406 (Robinson).)
       The monetary credit “must be applied „on a proportional basis‟ [citation]. In other
words, each dollar of monetary credit must be used proportionally to reduce the base fine,

                                                9
penalty assessments and restitution fine rather than any one of these categories alone.
Thus, if the monetary credit does not eliminate all amounts due, the defendant still owes
the remaining amount in each category.” (People v. McGarry (2002) 96 Cal.App.4th
644, 646, fn. omitted (McGarry).) In McGarry, the Court of Appeal explained the
arithmetic necessary to calculate a proportionate reduction in the base fine, penalty
assessments, and restitution fine that had been imposed on the defendant in the case
before it. (See id. at pp. 648-650.)
       The monetary credit provided by section 2900.5, subdivision (a) applies only to
“court-ordered payment of monies that serve as punishment, as opposed to court-ordered
payment of monies for nonpunitive purposes.” (Robinson, supra, 209 Cal.App.4th at
p. 407.) Thus, for example, monetary credit under section 2900.5, subdivision (a) may
not be applied to the court security fee (now known as the court operations assessment;
§ 1465.8, subd. (a)(1)), or to the court facilities assessment (Gov. Code, § 70373,
subd. (a)(1)). (See Robinson, supra, at pp. 403-404, 407.)
       In the receipt of stolen property case (No. SS090134A), the trial court sentenced
defendant to the middle term of two years. As we have explained, defendant is entitled
to a total of 516 days of custody credits (290 days actual plus 226 days conduct credit)
in that case. Based on the record on appeal, defendant‟s custody credits do not exceed
his two-year jail term, and therefore he is not entitled to monetary credit under
section 2900.5, subdivision (a). Defendant‟s contention that he will have already served
his sentence by the time this appeal is decided is without factual support in the record
before us.
       Defendant also concludes, without any supporting argument, that he is entitled to
monetary credit in the unlawful sexual intercourse case (No. SS110536A). As the trial
court did not award any custody credits in that case, and defendant does not challenge
that ruling on appeal, defendant fails to articulate a basis for awarding monetary credit in
that case.

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                                   IV. DISPOSITION
      In case No. SS090134A, the judgment is modified by awarding defendant a total
of 226 days conduct credit under section 4019. As so modified, the judgment is affirmed.
      In case No. SS110536A, the judgment is affirmed.




                                 ___________________________________________
                                 BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




________________________________
MÁRQUEZ, J.




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