Filed 7/3/13 P. v. Koontz CA2/6 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

TREVOR LEE KOONTZ,

Defendant and Appellant. 2d Crim. No. B224697 2d Crim. No. B224701 (Super. Ct. No . 2009029278 ) (Super. Ct. No . 2009002554) (Ventura County)

ON REMAND

This case is before us on remand from the California Supreme Court to reconsider the cause in light of People v. Brown (2012) 54 Cal.4th 314 and People v. Lara (2012) 54 Cal.4th 896. (Cal. Rules of Court, ru le 8.528(d). Having read and considered the supplemental briefs, we vacate our prior decisi on and conclude that appellant is not entitled

to enhanced conduct credits under former Pena l Code section 4019 which was in effect on January 25, 2010. 1 (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.) Facts and Procedural History In exchange for an indicated three-ye ar sentence, Trevor Lee Koontz pled guilty in case number 2009029278 to felony child endangerment (Pen. Code, § 273a, subd. (a)), and admitted a prior serious felony conviction (§§ 667, subd s. (a)(1) & (e)(1); 1170.12,

1 All statutory references are to the Penal Code unless otherwise stated.2 subds. (a)(1) & (c)(1)) and adm itted suffering two prior prison te rms (§ 667.5, subd. (b)). The trial court struck the prior serious felony conviction and a prior prison term. On March 16, 2010, it sentenced appellant to three years state prison. The court awarded 219 days actual credit plus 108 days conduct credit (§ 4019, subds. (b)(2) & (c)(2)) but ruled that appellant was not eligible to receive one-fo r-one conduct credits (a n additional 108 days conduct credit) due to the prior serious felony strike conviction. 2 Appellant argued that th e order striking the prior conviction entitled him to

"one-for-one credits under PC 4019 , as it's currently written." Denying the request, the trial

court stated: "I did take a look at the Code se ction [§ 4019] again. If it satisfies you, I will confess . . . that it continues to be subject to interpretation . . . , but that's how I read the Code, sir." Former Section 4019 Effective January 25, 2010 , section 4019 was amended to provide that certain defendants may earn presentence credit at the rate of two days for every two days in custody, commonly referred to as "one-for-one cr edits." The Legislatur e said: "It is the intent of the Legislature that if all days are ea rned under this section, a term of four days

will be deemed to have been serv ed for every two days spent in actual custody, except that a term of six days will be deemed to have been served for ever y four days spent in actual custody for persons described in paragraph (a) of subdivision (b) or (c)." Thereafter on September 28, 2010, the Legislature deleted "one-for-one credits." (See People v. Brown,

supra, 54 Cal.4th at p. 318, fn. 3 [d iscussing legislative history].)

In People v. Brown, supra, 54 Cal.4th 314, our Supreme Court concluded that the January 25, 2010 version of section 40 19 only applies to time in custody after its

2 Appellant admitted violating probation in a second case (Case No. 2009002554) following a plea of guilty to felony ch ild endangerment (§ 273a, subd. (a)) and possession of a controlled substance (Health & Saf. Code § 113 77, subd. (a)). At a combined sentencing hearing, the trial court revoke d probation and sentenced appella nt to two years on the child endangerment count and a 16 month concurrent term on the controlled substance count, and ordered the sentence to be served concurrent with the three year sentence in case number 2009029278. Appellant appealed from the deni al of one-for-one conduct credits in the second case (B224701) which was ordere d consolidated with this appeal.3 operative date. ( Id. , at p. 322-323.) "To apply fo rmer section 4019 prospectively necessarily means that prisoners whose custody overlapped the statute's operative date (Jan. 25, 2010) earn credit at two different rates." ( Id. , at p. 322.) That is the case here. Appellant serv ed 144 days actual custody in 2009 and 75 days actual custody in 2010 be fore he was sentenced to state prison. He is not entitled to

enhanced one-for-one conduct credits for time in custody be fore January 25, 2010. ( Id ., at p. 318; see Couzens & Bigelow, Awarding Cu stody Credits (Feb. 2013) pp. 8-9, available online at http://www.courts.ca.gov/pa rtners/documents/Credits_Memo.pdf.) The January 25, 2010 version of secti on 4019 provides that defendants with a prior serious or violent felony conviction are not eligible to receive enhanced one-for-one conduct credits. (Former § 4019 , subds. (b)(2) & (c)(2).) In People v. Lara

, supra, 54 Cal.4th 896, our Supreme Court held that a tria l court does not have authority under section 1385 to disregard historical facts that disqua lify a defendant from earning enhanced one-forone conduct credits under former section 4019. ( Id. , at p. 900.) Appellant has a disqualifying 1997 serious felony conviction. The trial court st ruck the prior serious felony

conviction under section 1385 to avoid doubling appellant's prison sentence (§ 1170.12, subd. (c)(1)) and correctly found that appella nt was not entitled to enhanced one-for-one conduct credits. ( Id ., at p. 906.) The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.4 Bruce Young, Judge Superior Court County of Ventura

________________ ______________

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director a nd Richard B. Lennon, Staff Attorney, for Defendant and Appellant.

Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorn ey General, Pamela C. Hama naka and Lance C. Winters, Senior Assistant Attorneys General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plain tiff and Respondent.