THE PEOPLE v. KENDAREL LUCKETT (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Kendarel Luckett (defendant) was convicted of possession of marijuana for sale in violation of Health & Safety Code section 11359.¹  On appeal, defendant contends that the trial court erred in sentencing him.   We modify defendant's sentence and remand to the trial court to amend the abstract of judgment accordingly.

BACKGROUND

On September 3, 2009, defendant was charged with possession of marijuana for sale in violation of Health & Safety Code section 11359.   The information also alleged that defendant had a prior serious felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).

On October 23, 2009, pursuant to a plea agreement, defendant pled no contest to the charge, and the prosecution agreed to strike the allegation that defendant had a prior serious felony conviction.²  On January 27, 2010, the trial court sentenced defendant to 16 months in state prison.   Defendant was credited with 487 days in custody consisting of 325 days actual custody credits and 162 days conduct credit.   The trial court therefore declared that defendant had served his prison term in county jail, and ordered defendant released.

DISCUSSION

Defendant contends that the trial court erred by miscalculating his actual custody credits by one day and that he should have been credited for 326 days instead of 325 days.   Respondent agrees.

Defendant was arrested for his second offense on March 8, 2009 and he was sentenced 326 days later on January 27, 2010.   The calculation of actual custody time includes the date of sentencing.  (People v. Caceres (1997) 52 Cal.App.4th 106, 110;  People v. Browning (1991) 233 Cal.App.3d 1410, 1412.)   Defendant therefore was entitled to 326 days actual custody credit.

Defendant also contends that the trial court erred in calculating his presentence conduct credit.   The trial court credited defendant with 162 days of conduct credit.   Defendant contends that he was entitled to 326 days of conduct credit.   Respondent again agrees.

Penal Code section 4019 governs the calculation of defendant's conduct credit.   Under a former version of Penal Code section 4019 applicable at the time, the court in People v. Kimbell (2008) 168 Cal.App.4th 904, explained that “Under Penal Code section 4019, a defendant receives two days of conduct credit for each four-day block of time served.  ‘The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder.   That whole-number quotient is then multiplied by two to arrive at the number of good/work credits.   Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.  [Citations.]’  [Citation.]”  (Id. at pp. 908–909.)

Under the version of Penal Code section 4019 ³ in effect at the time of defendant's sentencing on January 27, 2010, a defendant received two days of conduct credit for each two-day block of time served.   Modifying the method of calculating presentence custody credits stated in People v. Kimbell, supra, 168 Cal.App.4th at pages 908–909, to apply to the version of section 4019 in effect at the time of defendant's sentencing, “we divide by ․” two “the number of actual presentence days in custody, discounting any remainder.   That whole-number quotient is then multiplied by two to arrive at the number of good/work credits.   Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.”   Having spent 326 days in custody, defendant is entitled to 326 days of conduct credit.   Defendant, therefore, is entitled to a total of 652 days of presentence credit.

DISPOSITION

Defendant's judgment is modified to provide that he is entitled to a total of 652 days of presentence credit consisting of 326 days of actual custody credit and 326 days of conduct credit.   The matter is remanded for the trial court to amend the abstract of judgment accordingly.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

KUMAR, J.^*

FOOTNOTES

FN1. Defendant appeals from the judgments in Los Angeles County Superior Court case numbers BA335037 and BA353772.   However, the issues that defendant raises on appeal—contentions of sentencing errors—relate only to case number BA353772.   We, therefore, only address case number BA353772..  FN1. Defendant appeals from the judgments in Los Angeles County Superior Court case numbers BA335037 and BA353772.   However, the issues that defendant raises on appeal—contentions of sentencing errors—relate only to case number BA353772.   We, therefore, only address case number BA353772.

FN2. The record does not indicate that the allegation was stricken..  FN2. The record does not indicate that the allegation was stricken.

FN3. The version of Penal Code section 4019 effective January 25, 2010, (Stats.2009–2010, 3d Ex.Sess.2009, ch. 28, § 50) stated in pertinent part, “(a) The provisions of this section shall apply ․ [¶] ․ [¶] (4) When a prisoner is confined in a county jail ․ following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned ․ [¶] (c)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established ․ [¶] ․ (f) 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․”.  FN3. The version of Penal Code section 4019 effective January 25, 2010, (Stats.2009–2010, 3d Ex.Sess.2009, ch. 28, § 50) stated in pertinent part, “(a) The provisions of this section shall apply ․ [¶] ․ [¶] (4) When a prisoner is confined in a county jail ․ following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned ․ [¶] (c)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established ․ [¶] ․ (f) 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․”

FOOTNOTE.  FN*.  Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

ARMSTRONG, Acting P. J.