People v. Brown CA4/2 ( 2021 )

Filed 1/5/21 P. v. Brown CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074257
v. (Super.Ct.No. FWV19001083)
JASON COREY BROWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Affirmed as modified with directions.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather
B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Jason Corey Brown contends that pursuant to Senate Bill No. 136
(2019-2020 Reg. Sess.), both of his prior prison term enhancements must be stricken.
Defendant further maintains he is entitled to an additional day of custody credit. The
People concede both issues. The judgment is affirmed as modified with directions.
I. PROCEDURAL BACKGROUND1
A jury convicted defendant of grand theft (Pen. Code, § 487, subd. (a), count 1)
and found true the value of the merchandise was more than $950. The trial court
subsequently found true allegations that defendant had suffered two prior prison terms
(Pen. Code, former § 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)).
The trial court thereafter sentenced defendant to six years of imprisonment,
consisting of the upper term of three years on the count 1 offense, doubled pursuant to the
strike prior. The court imposed an additional year on each of the two prior prison terms,
but stayed imposition of punishment “because of the change in the law that’s coming in
January. SB136.” The court awarded defendant a total of 496 days of custody credits
consisting of 248 actual days and 248 days of conduct credit.
1 The underlying facts of defendant’s offense are irrelevant to the issues raised on
appeal.
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II. DISCUSSION
A. Prior Prison Term Enhancements.
Defendant contends that pursuant to Senate Bill No. 136, both of his prior prison
term enhancements must be stricken. The People concede the issue. We agree.2
“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to
impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free of
custody for at least five years. [Citation.] Courts nevertheless had discretion to strike
that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of
January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amend[ed] section 667.5,
subdivision (b) [(Stats. 2019, ch. 590, § 1)] to limit its prior prison term enhancement to
only prior prison terms for sexually violent offenses, as defined in Welfare and
Institutions Code section 6600, subdivision (b).” (People v. Jennings (2019)
42 Cal.App.5th 664, 681.)
“By eliminating section 667.5, subdivision (b) enhancements for all prior prison
terms except those for sexually violent offenses, the Legislature clearly expressed its
intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison
terms for offenses other than sexually violent offenses. [Citation.] Therefore, we
2 Even prior to the passage of Senate Bill No. 136, a stayed sentence on a prior
prison term enhancement was an unauthorized sentence. (People v. Langston (2004)
33 Cal.4th 1237, 1242; see People v. Perez (2011) 195 Cal.App.4th 801, 805.) Thus,
irrespective of Senate Bill No. 136, we would be compelled to order the prior prison
terms stricken.
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conclude, and the parties agree, that under the Estrada[3] rule, Senate Bill No. 136’s . . .
amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final
as of its January 1, 2020, effective date.” (People v. Jennings, supra, 42 Cal.App.5th at
p. 682; accord People v. Herrera (2020) 52 Cal.App.5th 982, 995-996, review granted
Oct. 14, 2020, S264339.)
Here, neither of the criminal convictions leading to defendant’s prison sentences,
which were alleged as prior prison term enhancements, were based on sexually violent
offenses.4 Moreover, defendant’s judgment is not yet final. Thus, we shall modify the
judgment to strike both prior prison term enhancements. (People v. Gastelum (2020)
45 Cal.App.5th 757, 773 [“[W]here, as here, an enhancement is erroneously imposed and
the trial court has already imposed the maximum possible sentence, a remand for
resentencing is unnecessary.”].)
B. Custody Credits.
Defendant maintains he is entitled to an additional, actual day of custody credit.
The People concede the issue. We agree.
“‘A defendant is entitled to actual custody credit for “all days in custody” in
county jail . . . including partial days.’ [Citation.] ‘Calculation of custody credit begins
on the day of arrest and continues through the day of sentencing.’ [Citation.] ‘“The law
takes no notice of fractions of a day. Any fraction of a day is deemed a day . . . .”’
3 In re Estrada (1965) 63 Cal.2d 740.
4 Both prior prison terms served by defendant derived from his convictions for
robbery. (Pen. Code, § 211.)
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[Citation.] The day the defendant is arrested counts as a custody credit day no matter
how many hours or minutes the defendant was in jail on that day.” (People v. Valdes
(2020) 53 Cal.App.5th 953, 955.) “A sentence that fails to award legally mandated
custody credit is unauthorized and may be corrected whenever discovered.” (People v.
Taylor (2004) 119 Cal.App.4th 628, 647; accord People v. Chilelli (2014)
225 Cal.App.4th 581, 591.)
Defendant was arrested on March 31, 2019. The trial court sentenced defendant
on December 4, 2019. Defendant remained in custody during the entirety of that period.
The court awarded defendant a total of 496 days of custody credits consisting of 248 days
of actual and 248 days of conduct credit. However, counting every day defendant spent
in custody, including the day of his arrest and the day of his sentencing, amounts to
249 days. Thus, the court should have awarded defendant an additional day of actual
custody credit.
III. DISPOSITION
The judgment is modified to strike the two, one-year prior prison term
enhancements imposed under former section 667.5, subdivision (b), and defendant is
awarded one additional day of actual custody credit. The trial court is directed to prepare
a corrected abstract of judgment and forward it to the Department of Corrections and
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Rehabilitation. (People v. Gastelum, supra, 45 Cal.App.5th at p. 773.) As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
CODRINGTON
J.
MENETREZ
J.
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