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Filed 4/4/14 P. v. Gunn CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Amador)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JARED DANIEL GUNN,

Defendant and Appellant.

C071451

(Super. Ct. Nos. 11CR17880 

& 11CR17987)

Defendant Jared Daniel Gunn appeals sentences imposed after he entered guilty 

pleas in two cases pursuant to People v. West (1970) 3 Cal.3d 595 (West). In the first 

case, No. 11CR17880, defendant pleaded guilty to causing corporal injury to a cohabitant 

in violation of Penal Code section 273.5, subdivision (a)1in exchange for a stipulated 

sentence of three years, and the dismissal of a second count, possession of a controlled 

 

1

 Undesignated statutory references are to the Penal Code.
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substance (Health & Saf. Code § 11350, subd. (a)). In the second case No. 11CR17987, 

defendant pleaded guilty to one count of dissuading a witness by force or threat in 

violation of section 136.1, subdivision (c)(1) in exchange for a stipulated sentence of 

three years, to be served concurrently with the three-year term imposed on the first case, 

and the dismissal of a second count, disobeying a domestic relations court order (§ 273.6, 

subd. (a)). The parties agreed that a special allegation that defendant was out on bail 

when he committed the offense (§ 12022.1) would be stricken, and another pending 

criminal case would be dismissed in its entirety. Consistent with the negotiated terms of 

the agreement, the trial court suspended execution of the concurrent three-year prison 

sentences and placed defendant on probation. Defendant’s probation was later revoked. 

Thereafter, the trial court imposed a one-year state prison term in the first case, to run 

consecutively to a three-year state prison term in the second case. The trial court also 

ordered defendant to pay a $400 domestic violence fee (former § 1203.097; Stats. 2010, 

ch. 132, § 1)2in both cases. The court awarded appellant 561 days of presentence 

custody credits and applied those credits to the second case. 

On appeal, defendant contends that: (1) the court erred in imposing a consecutive 

sentence in the first case, (2) the court erred in imposing the $400 domestic violence fund 

fees because the fees were not authorized under former section 1203.097 for persons 

sentenced to state prison, and (3) the court erred in calculating defendant’s presentence 

custody credits. The People agree with defendant that the consecutive sentences were 

erroneously imposed and the presentence custody credits were miscalculated. However, 

the People contend that the domestic violence fund fees were the original fees imposed at 

the time probation was granted in accordance with former section 1203.097, and that no 

 

2

 Section 1203.097 was amended in 2012 to increase the domestic violence fee from 

$400 to a “minimum payment” of $500. (§ 1203.097, subd. (a)(5)(A); Stats. 2012, 

ch. 628, § 1.5.) 
3

provision relieves a defendant whose probation is revoked and sentenced to state prison 

from the responsibility of paying those fees. Defendant did not file a reply brief 

responding to this argument. 

We conclude that defendant’s sentence should be modified to reflect the 

previously imposed concurrent sentences in both cases and that he should be awarded a 

total of 150 days’ credit in the first case and 530 days’ credits in the second case. We 

also conclude that the two $400 domestic violence fund fees were properly imposed 

when probation was granted under former section 1203.097 and that defendant is still 

responsible for paying those fees, even though he has now been sentenced to state prison. 

We order modification of defendant’s sentence and his credits but otherwise 

affirm. `

FACTUAL AND PROCEDURAL BACKGROUND

The First Case - Case No. 11CR17880

On February 3, 2011, an Amador County Sheriff’s Department deputy was 

dispatched to a residence in Martell in response to a report of domestic violence.3 The 

victim, A.A., who was defendant’s girlfriend at the time, reported that defendant had 

“kicked her in the legs several times, grabbed her right wrist and held her while he struck 

her in the back of the head six times with a stereo remote control, threw a can of soda at 

her and threatened to kick her in the stomach.” At the time, A.A. was six months 

pregnant with defendant’s child. A.A. stated that defendant had been drinking and 

consuming drugs. A.A. sustained multiple contusions to the top of her head and 

abrasions on the back of her neck, lower back, and right shoulder. Later that day, the 

deputies located and arrested defendant. During his arrest, he was found to be in 

possession of 16 codeine pills, two flexaril pills and three cyclobenzaprine hydrochloride 

 

3

 All facts are taken from the probation reports. 
4

pills, none of which he had prescriptions for. These facts formed the basis for the 

criminal complaint in the first case, filed on February 4, 2011, which charged defendant 

with one count of causing corporal injury to a cohabitant (§ 273.5, subd. (a)) and one 

count of possession of a controlled substance, codeine (Health and Saf. Code, § 11350, 

subd. (a)). A criminal protective order issued under Penal Code section 136.2, ordering, 

among other things, that defendant have no contact with A.A. 

The Second Case - Case No. 11CR17987

On February 28, 2011, an Amador County Sheriff’s Department deputy was 

dispatched to a residence in Jackson in response to a report of a court order violation. 

A.A. told the deputy that her ex-boyfriend, defendant, had been arrested for domestic 

violence against her and was subject to a no-contact restraining order. A.A. showed the 

deputy several text messages she had received from defendant during the early morning 

hours of February 28, in which he made various threats. A.A. further stated that in other 

messages, defendant said he would send his “home girls,” which she understood to mean 

that he would send people to beat her up, and he also told her not to report the incidents 

to law enforcement. These facts formed the basis for the criminal complaint in the 

second case, filed on March 9, 2011, which charged defendant with one count of 

dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) with a special allegation 

that defendant committed the offense while released on bail (§ 12022.1) and one count of 

disobeying a domestic relations court order (§ 273.6, subd. (a)). 

The Plea Agreement and Grant of Probation

On September 29, 2011, pursuant to a plea agreement, defendant entered a West 

plea of guilty to the first counts in both cases in exchange for a stipulated three-year 

prison term to run concurrently. Execution of the concurrent state prison sentences was 

to be suspended and defendant granted five years of felony probation. The agreement 

noted that defendant would serve one year in a residential drug treatment program and 
5

one year in a domestic violence prevention program in both cases. Pursuant to the 

agreement, the People dismissed all other counts and allegations as previously noted. 

On December 20, 2011, at sentencing, the trial court imposed concurrent threeyear state prison terms, suspended execution of the sentences and placed defendant on 

five years’ probation with various conditions, including completion of drug treatment and 

batterer’s programs and payment of a $400 domestic violence fund fee in each case 

pursuant to former section 1203.097. The court also granted a criminal protective order, 

requiring, among other things, that defendant have no contact with A.A.

Violation of Probation and State Prison Sentencing

On March 14, 2012, the Amador County Probation Department filed a petition to 

revoke defendant’s probation in both cases because he failed to complete the drug and 

alcohol treatment program and failed to notify the probation department of his new 

address. Ten days later, defendant was arrested on bench warrants issued in both cases. 

On April 2, 2012, the probation department filed an amended revocation petition, which 

added the allegation that on March 13, 2012, defendant had violated the no-contact order

and harassed A.A. again. On April 30, 2012, the probation department filed a second 

amended petition alleging that on April 17, 2012, defendant committed a battery in 

violation of section 243, subdivision (a).4 Defendant initially denied the allegations. On 

May 25, 2012, defendant admitted the allegations in the second amended revocation 

petition except for the battery allegation, which was stricken. 

On May 29, 2012, the court revoked defendant’s probation and sentenced him to 

prison for a midterm prison sentence of three years on the second case. On the first case, 

the court sentenced defendant to one year (one-third the midterm), to be served 

consecutively to the three-year term imposed in the second case. He was ordered to pay 

 

4

 This incident happened while defendant was in the jail. 
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various fees and fines, including a $400 domestic violence fee in each case pursuant to 

former section 1203.097. The court awarded a total of 561 days of presentence custody 

credits, consisting of 381 actual days and 180 days’ conduct credits, and applied the 

credits to the second case. 

On June 19, 2012, defendant filed a timely notice of appeal. On July 17, 2012, he 

filed an ex parte motion to amend the abstract of judgment to include additional 

presentence custody credits, which was denied because defendant’s petition requested 

fewer credits than he had been awarded at sentencing. 

DISCUSSION

I. Consecutive Sentences 

Defendant contends that the trial court lacked authority to impose consecutive 

sentences in his two cases upon revocation of his probation because, pursuant to the plea 

agreement, the two three-year sentences were to be served concurrently. The People 

agree with defendant, and so do we. 

When a trial court revokes probation in a case where sentence has been imposed 

and its execution suspended, the court may not modify the sentence that was originally 

imposed. (See § 1203.2, subd. (c); Cal. Rules of Court, rule 4.435.) “[S]ection 1203.2, 

subdivision (c), and rule 435(b)(2) [now rule 4.435(b)(2)], by their terms, limit the court's 

power in situations in which the court chose to impose sentence but suspended its 

execution pending a term of probation. On revocation of probation, if the court 

previously had imposed sentence, the sentencing judge must order that exact sentence 

into effect. [Citations].” (People v. Howard (1997) 16 Cal.4th 1081, 1088.) Thus, the 

consecutive terms imposed by the trial court were not only inconsistent with the 

negotiated plea agreement, but also unauthorized by law.5 Accordingly, we agree with 

 

5

 Before defendant admitted the violation of probation, the trial court told defendant, “a 

three-year state prison execution suspended would be imposed, but by operation of law 
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defendant and the People that the sentence should be modified in accordance with the 

originally imposed sentence, such that the previously suspended three-year sentences are 

served concurrently, for a total aggregate term of three years in state prison. 

II. Domestic Violence Fund Fee

Defendant contends that the two $400 domestic violence fund fees the court 

ordered defendant to pay upon revocation of his probation were unauthorized and must 

be stricken. He argues that because former section 1203.097, subdivision (a) states that 

the fee imposed under that section applies only to persons placed on probation, fees under 

this provision could not be imposed after the revocation of his probation. Defendant 

concludes that because his probation was not reinstated, the domestic violence fund fees 

were unauthorized and must be stricken. 

The People contend that while defendant is correct that the domestic violence fund 

fees may only be imposed if a person is granted probation, there is no relief of

responsibility for the fee if probation is revoked. (Former § 1203.097.) We agree with 

the People. No provision relieves a defendant of responsibility for this fee when 

probation is revoked. Thus, we conclude that the original $400 domestic violence fund 

fees imposed in each case when defendant was granted probation continue to be due and 

payable. 

 

the Court would have to make one of those one-third the mid-term.” Later, after the 

admission, the court stated, “Subordinate term will be the 273.5 even though the three 

years execution suspended, by operation of law, I’ve got to make the second one a onethird the mid-term which would be an additional year.” At sentencing, the court stated 

that the sentence on the first case “has to be one-third the base term.” While a court may

in its discretion sentence a defendant to consecutive terms when the defendant is 

convicted of a felony and a felony violation of section 136.1 committed against the 

victim of the felony, if the court does so, the subordinate term shall consist of the full 

middle term of imprisonment for the felony for which the consecutive term is imposed, 

not one-third the midterm. (§ 1170.15; see also People v. Hennessey (1995) 

37 Cal.App.4th 1830, 1835 [ § 1170.15 is an alternative sentencing scheme].) 
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III. Presentence Custody Credits

Defendant contends that the court erred in calculating his presentence custody 

credits. When defendant’s probation was revoked and he was sentenced to prison, the 

court awarded a total of 561 days of presentence custody credits, consisting of 381 actual 

days and 180 conduct credit days, and applied the credits to the second case. Defendant 

contends that the total for both cases falls short by 119 credits, and that his presentence 

custody credit should total 688 days. The People appropriately concede the point. 

On September 28, 2010, as an urgency measure effective on that date, the 

Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (see Stats. 2010, ch. 426), 

which amended section 2933 regarding presentence conduct credits for defendants 

sentenced to state prison. The amendment gave qualifying prisoners one day of 

presentence conduct credit for each day of actual presentence confinement served (Sen. 

Bill. No. 76, § 1; Pen. Code, § 2933, subd. (e)(1)-(3)), thereby eliminating the loss of one 

day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 

(2009-2010 3d Ex. Sess. (see Stats. 2009, ch. 28, § 50), when the person served an odd 

number of days in presentence custody. It also eliminated the directive in Penal Code 

section 4019 that no presentence conduct days may be credited for commitments of fewer 

than four days. (Sen. Bill No. 76; § 2; Pen. Code, § 4019, subd. (g).) Sections 4019 and 

2933 were again amended in October 2011; however, under section 4019, 

subdivision (h), this most recent amendment applies only to persons who commit crimes 

on or after October 1, 2011. 

Because defendant’s crimes in the first case, case No. 11CR17880, were 

committed in February 2011, his presentence custody credits should have been calculated 

according to the September 2010 amendment to section 2933. (Stats. 2010, ch. 426, § 1.) 

Therefore, defendant should have received one day of conduct credit for each day of 

actual presentence confinement served in that case. (Pen. Code, former § 2933, 

subd. (e)(1).) However, in the second case, case No. 11CR17987, defendant committed 
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a serious felony, which made him ineligible for the additional credits under former 

section 2933, subdivision (e)(1), and his credits therefore should have been calculated 

according to the September 2010 amendment to section 4019 instead. (Former § 4019, 

subd. (f).) 

In the first case, case No. 11CR17880, defendant was in custody from February 3, 

2011 to February 9, 2011, and should have been awarded a total of 14 presentence 

custody credits, consisting of seven actual days and seven days’ conduct credit. 

Additionally, defendant was in custody for 68 days from March 23, 2012 to May 29, 

2012, and should have been awarded a total of 136 presentence custody credits, 

consisting of 68 actual days and 68 days’ conduct credit. Therefore, in total, defendant 

should have received credit for 150 days in the first case, case No. 11CR17880. 

In the second case, case No. 11CR17987, defendant was in custody from 

March 10, 2011 to December 20, 2011 for dissuading a witness by force, a serious felony 

under section 1192.7, and therefore he was not entitled to the enhanced credit provisions 

of former section 2933 but was still entitled to two days of conduct credits for every four 

days served under former section 4019, subdivision (f). Accordingly, he should have 

been awarded a total of 428 presentence custody credits, consisting of 286 actual days 

and 142 conduct credit days.

6

 Additionally, defendant was in custody in the second case, 

case No. 11CR17987 from March 23, 2012 to May 29, 2012, and should have been 

awarded a total of 102 days of presentence custody credit, consisting of 68 actual days 

 

6

 “The proper method of calculating these 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.]” 

(People v. Culp (2002) 100 Cal.App.4th 1278, 1283.) In this case, 286 divided by four is 

71.5, which is discounted to 71 and then multiplied by two for a total of 142 conduct 

credits. 
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and 34 conduct credit days.

7

 Therefore, in total, defendant should have received 

530 credits in case No. 11CR17987. We conclude that defendant’s sentence and the 

abstract of judgment should be modified to reflect 150 days of presentence credit in case 

No. 11CR17880 and 530 days of presentence credit in case No. 11CR17987. 

DISPOSITION

The judgment is modified to vacate the one-year consecutive sentence imposed on 

case No. 11CR17880 and instead execute the originally imposed three-year sentence on 

that case to be served concurrently with the three-year sentence imposed on case No. 

11CR17987. The judgment is further modified to award 150 days of presentence custody 

credits in case No. 11CR17880 and 530 days of presentence custody credits in case 

No. 11CR17987 for a total of 680 credits. In all other respects, the judgment is affirmed. 

The trial court is directed to prepare an amended abstract of judgment reflecting the 

judgment as modified, and to forward a certified copy of the amended abstract of 

judgment to the Department of Corrections and Rehabilitation.

 MURRAY , J.

We concur:

 BLEASE , Acting P. J.

 MAURO , J.

 

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 68 divided by four is 17, which is multiplied by two for a total of 34 conduct credits.