Filed 12/18/13 P. v. Malchier CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

SABRINA DESIREE MALCHER, 

Defendant and Appellant. 

F066603 

(Super. Ct. No. F11907306) 

OPINION

THE COURT* 

 APPEAL from a judgment of the Superior Court of Fresno County. Jon N. 

Kapetan, Judge. 

 Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert 

Jibson, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

* Before Levy, Acting P.J., Kane, J. and Franson, J. 
2. 

 Defendant Sabrina Desiree Malcher contends the trial court erred in refusing to 

award her day-for-day credits. The People concede, and we agree, that defendant was 

entitled to day-for-day credits under the version of Penal Code section 2933, 

subdivision (e)1 that was in effect on the dates defendant committed the crimes. We will 

modify the judgment to award defendant the correct number of presentence credits and 

affirm in all other respects. 

DISCUSSION 

 On September 13, 2012, defendant pled no contest to the felonies of identity theft 

(§ 530.5, subd. (a)) and commercial burglary (§§ 459, 460, subd. (b)) for crimes she 

committed on June 30, 2011, and July 8, 2011. On January 23, 2013, the trial court 

sentenced her to two years in county jail. She requested “accelerated credits” for day-forday credits, but the court declined because she was being sentenced under the 

Realignment Act (Stats. 2011, ch. 15, § 482 (Assem. Bill No. 109)) to county jail, rather 

than prison. The trial court awarded her 224 days of credit for actual time served 

(§ 2900.5) and 112 days of conduct credit (§ 4019). 

 When defendant committed her crimes in June and July 2011, conduct credits for 

defendants convicted of felonies and sentenced to state prison were governed by 

section 2933, former subdivision (e). (Stats. 2010, ch. 426, § 1.) That version authorized 

day-for-day conduct credits: “Notwithstanding Section 4019 ..., a prisoner sentenced to 

the state prison under Section 1170 for whom the sentence is executed shall have one day 

deducted from his or her period of confinement for every day he or she served in a county 

jail ... from the date of arrest until state prison credits pursuant to this article are 

applicable to the prisoner.” 

 While defendant’s case was pending, the sentencing statutes were amended as part 

of the Realignment Act. As a result, defendant was sentenced to county jail, rather than 

 

1 All statutory references are to the Penal Code unless otherwise noted. 
3. 

state prison. Had she gone to prison, she would have been entitled to the additional 

credits under section 2933, former subdivision (e). This postoffense change effected by 

the Realignment Act could not serve to reduce defendant’s credits without violating the 

constitutional prohibition on ex post facto laws. (See Weaver v. Graham (1981) 450 U.S. 

24, 31; People v. Nunez (2013) 220 Cal.App.4th 1527 [2013 Cal.App. Lexis 883].) 

 Accordingly, we agree with both parties that defendant is entitled to 112 additional 

days of conduct credits. 

DISPOSITION 

 The judgment is modified to award defendant credit for a total of 448 days of 

presentence credit, consisting of 224 days of actual custody and 224 days of conduct 

credit. In all other respects, the judgment is affirmed. The trial court is directed to 

prepare a corrected abstract of judgment and send a certified copy to the appropriate 

agencies and entities.