People v. Jones ( 2023 )

Filed 2/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B318732
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA152434)
v.
RASHEED MALCOLM
JONES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Connie R. Quinones, Judge. Affirmed as
modified.
Michael S. Evans for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline, for
Plaintiff and Respondent.
**********
The sole issue presented is whether the trial court
incorrectly calculated presentence custody credits. Defendant
and appellant Rasheed Malcolm Jones pled no contest to one
count of assault with a firearm and admitted a prior 2012
conviction for the same offense in exchange for a four-year
sentence. Defendant contends the court erred in not awarding
him presentence custody credits in accordance with Penal Code
section 4019.
We agree that presentence custody credits should have
been calculated pursuant to Penal Code section 4019. We
therefore modify the judgment to reflect presentence custody
credits in the total amount of 993 days and otherwise affirm the
judgment as so modified.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged, along with three codefendants,
with several felonies. In January 2022, pursuant to a negotiated
plea agreement, defendant pled no contest to one count of assault
with a firearm (Pen. Code, § 245, subd. (a)(2)) and admitted
having suffered a prior conviction for assault with a firearm in
2012 in exchange for a four-year prison sentence. The parties
stipulated to a factual basis for the plea and the court accepted
defendant’s plea and waivers on the record, finding them to have
been knowingly, intelligently and voluntarily made. The
remaining counts against defendant were dismissed. The court
imposed sentence according to the negotiated plea agreement.
The court awarded defendant presentence custody credits
in the total amount of 596 days (497 actual, plus 99 conduct).
The court rejected defendant’s argument that presentence
custody credits should be awarded pursuant to Penal Code
section 4019.
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Defendant did not seek a certificate of probable cause, but
rather, filed a timely notice of appeal.
DISCUSSION
1. Dismissal of the Appeal Is Not Warranted.
The People argue the appeal must be dismissed pursuant to
Penal Code section 1237.5 because defendant did not obtain a
certificate of probable cause, or alternatively, because he did not
first raise the issue in the trial court as required by
section 1237.1. We do not agree.
“In determining whether [Penal Code] section 1237.5
applies to a challenge of a sentence imposed after a plea of guilty
or no contest, courts must look to the substance of the appeal . . .
the critical inquiry is whether a challenge to the sentence is in
substance a challenge to the validity of the plea, thus rendering
the appeal subject to the requirements of section 1237.5.” (People
v. Panizzon (1996) 13 Cal.4th 68, 76, citation & italics omitted;
accord, People v. Cuevas (2008) 44 Cal.4th 374, 381.)
The plea agreement required defendant to admit to a prior
2012 conviction for assault with a firearm. The People contend
defendant’s admission of the prior strike expressly limits his
custody credits to no more than one-fifth or 20 percent of his total
prison sentence. They say that defendant’s challenge to the
calculation of custody credits which amounts to a request to have
an upward modification of custody credits greater than
20 percent of his agreed-upon sentence is therefore an attack on
the validity of the plea requiring a certificate of probable cause.
As we explain in part 2 below, defendant was entitled to an
award of presentence custody credits in accordance with Penal
Code section 4019, notwithstanding his admission of the strike.
Defendant’s appeal does not challenge the validity of the plea but
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raises only a claim that the presentence credits were
miscalculated—an appellate contention that does not require a
certificate of probable cause. (See, e.g., People v. Hodges (2009)
174 Cal.App.4th 1096, 1102, fn. 5 [“Presentence custody credit
issues do not require a certificate of probable cause.”].)
Penal Code section 1237.1 also does not require a dismissal
here. The statute provides that no appeal shall be taken alleging
a miscalculation of presentence custody credits “unless the
defendant first presents the claim in the trial court at the time of
sentencing, or if the error is not discovered until after sentencing,
the defendant first makes a motion for correction of the record in
the trial court, which may be made informally in writing.” (Ibid.)
At the sentencing hearing, defense counsel expressly
requested the court to order “day-for-day” conduct credits because
a charge of assault with a firearm qualifies only as a serious
felony but not a violent felony. The court rejected defendant’s
argument and said he was not entitled to day-for-day credits
because he was admitting the prior strike. Defendant therefore
satisfied the requirement in Penal Code section 1237.1 of
presenting “the claim in the trial court at the time of sentencing.”
(Ibid.) He was not required to do anything further in the trial
court before bringing his appeal.
2. Presentence Custody Credits Were Miscalculated.
Ordinarily, presentence custody credits are calculated
according to Penal Code section 4019. (People v. Thomas (1999)
21 Cal.4th 1122, 1125 (Thomas).) Section 2900.5, subdivision (a)
provides in relevant part that “[i]n all felony and misdemeanor
convictions, either by plea or by verdict” where the defendant has
been in custody prior to sentencing, the defendant shall be given
presentence credits “pursuant to Section 4019.”
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Penal Code section 2933.1 creates an exception to the
general rule for defendants convicted of a violent felony within
the meaning of the Three Strikes law. Section 2933.1 provides in
relevant part that “[n]otwithstanding Section 4019 or any other
provision of law, the maximum credit that may be earned against
a period of confinement . . . following arrest and prior to
placement in the custody of the Director of Corrections, shall not
exceed 15 percent of the actual period of confinement for any
person specified in subdivision (a).” (Id., subd. (c).)
Subdivision (a) provides that “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.”
Defendant pled to one count of assault with a firearm and
admitted he suffered a conviction for that same offense in 2012.
Assault with a firearm is not a violent felony listed in Penal Code
section 667.5, subdivision (c). Therefore, the limitation on
presentence credits in section 2933.1 does not apply here.
(Thomas, supra, 21 Cal.4th at p. 1130.)
While not a qualifying violent felony, defendant’s assault
charge and prior strike qualify as a serious felony. (Pen. Code,
§ 1192.7, subd. (c)(31).) The People therefore rely on sections 667
and 1170.12 in arguing that defendant’s prior strike means his
presentence credits were limited by those statutes. But the
Three Strikes law has no effect on the calculation of presentence
conduct credits.
As the Supreme Court explained in People v. Buckhalter,
“[w]e recently held that restrictions on the rights of Three Strikes
prisoners to earn term-shortening credits do not apply to
confinement in a local facility prior to sentencing. We
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emphasized that when limiting the credit rights of offenders
sentenced thereunder, the Three Strikes law (§§ 667, subd. (c)(5),
1170.12, subd. (a)(5)) expressly refers only to ‘postsentence . . .
credits,’ i.e., those ‘ “awarded pursuant to [a]rticle 2.5” ’ [citation]
and ‘does not address presentence . . . credits’ for Three Strikes
defendants.” (People v. Buckhalter (2001) 26 Cal.4th 20, 32.)
Defendant’s presentence credits should have been
calculated according to Penal Code section 4019. We modify the
judgment to reflect total presentence custody credits in the
amount of 993 days (497 actual and 496 conduct credits).
DISPOSITION
The judgment of conviction is modified to reflect 993 days of
presentence custody credits (497 actual and 496 conduct). The
judgment is otherwise affirmed as so modified. On issuance of
the remittitur, the superior court is directed to prepare and
transmit a modified abstract of judgment to the Department of
Corrections and Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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