Filed 4/30/13 P. v. Diaz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE DIAZ,

Defendant and Appellant.

 H038283

 (Monterey County

 Super. Ct. Nos. SS091145, SS101626,

 SS111864)

In a global settlement of three pending cases, defendant Jesse Diaz pleaded no 

contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) 

and admitted having a prior strike conviction (Pen. Code, § 1170.12, subd. (c)(1))1as 

well as a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)). In 

exchange for the plea, Diaz was to be sentenced to a total term of six years in prison. 

At sentencing, Diaz was sentenced in accordance with his agreement and was 

awarded custody credits in varying amounts in connection with each of three cases. On 

appeal, he contends that he is entitled to enhanced presentence conduct credits in each of

those cases under both the current version of section 4019 as well as a prior version of 

that statute. The People concede, and we agree, that Diaz is entitled to additional credits 

in one of the three cases. We find he is not entitled to additional credits in the other two 

cases however. 

 

1

Further unspecified statutory references are to the Penal Code.
2

Accordingly, we will modify the abstract of judgment to provide additional credits 

in one case. As modified, we shall affirm the judgment. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Given that the appeal is directed solely at the issue of credits, we need only briefly 

summarize the facts underlying the three criminal cases at issue here. 

A. Case No. SS091145 (case No. 145)

On April 9, 2009, police executed a search warrant at Diaz‟s residence. Diaz was 

present at the house where police also found methamphetamine, hydrocodone, 

unregistered firearms, ammunition, and evidence of narcotics sales, such as scales and 

pay-owe sheets. Diaz was arrested that same day. 

Diaz was charged by information with possession of hydrocodone for sale (Health 

& Saf. Code, § 11351; count 1), possession of hydrocodone while armed (id. § 11370.1, 

subd. (a); count 2), possession of methamphetamine for sale (id. § 11378; count 3), 

possession of an assault weapon (former § 12280, subd. (b); count 4),2and street 

terrorism (§ 186.22, subd. (a); count 5). As to counts 1 and 3, the information further 

alleged that Diaz was personally armed with four different firearms--a shotgun, an assault 

rifle, a .22-caliber pistol and a .45-caliber revolver--pursuant to section 12022, 

subdivision (c). The information also alleged that Diaz committed counts 1, 2 and 3 for 

the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). 

B. Case No. SS101626 (case No. 626)

In the course of investigating a fraudulent check, police contacted a suspect who 

admitted cashing the check. The suspect said she got the check from Diaz, who 

threatened to kill her if she talked to police. According to the suspect, after Diaz 

 

2

Former section 12280, subdivision (b) was repealed operative January 1, 2012, 

but its provisions were reenacted without substantive change as section 30605. (Stats. 

2010, ch. 711, § 6.)
3

overheard her talking on the telephone with the police, he hit her with a wooden dowel 

and said he would kill her if she ever spoke to police about “his business” again. A few 

days after that incident, the suspect said a group of Hispanics showed up at her residence 

and reminded her if she said anything about Diaz or his family she “would be killed.” 

According to the probation report, the offenses were committed on May 17, 2010 

and Diaz was arrested on June 28, 2010. 

Diaz was charged by complaint with threatening to commit bodily harm (§ 422) 

and assault with a deadly weapon (§ 245). The complaint alleged both counts were 

committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that Diaz 

committed the offenses while on bail or on his own recognizance in case No. 145 and 

another case (§ 12022.1). 

C. July 22, 2010 negotiated disposition in case Nos. 145 and 626

On July 22, 2010, pursuant to a negotiated disposition, the prosecutor amended 

count 5 in case No. 145 to misdemeanor street terrorism and Diaz pleaded no contest to

that charge as well as to possession of methamphetamine for sale. In case No. 626, he 

pleaded no contest to the charge of making threats of violence. 

On August 27, 2010, the trial court suspended imposition of sentence in both cases 

and placed Diaz on probation. 

On September 28, 2011, Diaz was found in violation of his probation in both case 

Nos. 145 and 626 based on his plea in case No. MS299146 for being under the influence 

(Health & Saf. Code, § 11550) and driving under the influence (Veh. Code, § 23152, 

subd. (a)). 
4

D. Case No. SS111864 (case No. 864)

3

On August 5, 2011, Diaz transported, gave away or sold methamphetamine 

(Health & Saf. Code, § 11379, subd. (a)). The complaint, filed on October 3, 2011, 

further alleged Diaz had a prior narcotics conviction (id. § 11370.2, subd. (a)), as well as 

a strike prior (§ 1170.12, subd. (c)(1)). Diaz‟s probation in both case Nos. 145 and 626 

was violated based on this new case. 

E. Amendment of complaint in case No. 864 and global resolution

On February 29, 2012, the prosecutor amended the complaint in case No. 864 to 

add a charge of possession of a controlled substance. Diaz pleaded no contest to the new 

charge and admitted the strike prior conviction with the understanding he would receive a 

six year prison term. The trial court found Diaz was in violation of his probation in case 

Nos. 145 and 626, and ordered his sentences in those matters would be served concurrent 

with his sentence in case No. 864. 

F. Sentencing

On March 7, 2012, Diaz was sentenced in all three cases. In case No. 145, the trial 

court sentenced him to two years in prison and awarded him custody credits of 332 days, 

consisting of 222 custody credits and 110 conduct credits. In case No. 626, Diaz was 

sentenced to three years in prison and awarded 254 days of credits, consisting of 170 

custody credits and 84 conduct credits. In case No. 864, Diaz was sentenced to a total 

term of six years, consisting of the aggravated term of three years, doubled due to the 

prior strike conviction. He was awarded 235 days of credit, consisting of 157 custody 

credits and 78 conduct credits. The trial court ordered that the sentences in case Nos. 145 

and 626 were to be served consecutive to each other, but concurrently with the sentence 

in case No. 864. 

 

3

The record does not contain any facts about this particular case other than those 

set forth in the complaint.
5

II. DISCUSSION

A. Diaz is entitled to additional credits in case No. 145

Diaz argues, and the People concede, that he is entitled to additional conduct 

credits for the period of confinement between June 28, 2010 and February 3, 2011. 

During that period of confinement, Diaz was entitled to additional credits pursuant to the 

then-operative version of section 4019 which had an effective date of January 25, 2010.

Pursuant to People v. Brown (2012) 54 Cal.4th 314 and Payton v. Superior Court

(2011) 202 Cal.App.4th 1187, we agree that the concession is appropriate and will direct 

that the abstract of judgment be modified to award Diaz an additional 111 days of 

conduct credit in case No. 145.

B. Diaz is not entitled to additional credits in case Nos. 626 and 864

A criminal defendant is entitled to accrue both actual presentence custody credits 

under section 2900.5 and conduct credits under section 4019 for the period of 

incarceration prior to sentencing. Conduct credits may be earned under section 4019 by 

performing additional labor (§ 4019, subd. (b)) and by an inmate‟s good behavior. (Id. 

subd. (c).) In both instances, section 4019 credits are collectively referred to as conduct 

credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with 

awarding such credits at sentencing. (§ 2900.5, subd. (a).)

Before January 25, 2010, conduct credits under section 4019 could be accrued at 

the rate of two days for every four days of actual time served in presentence custody. 

(Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f)].) Effective January 25, 

2010, the Legislature amended section 4019 in an extraordinary session to address the 

state‟s ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18 amended section 
6

4019 such that defendants, with some exceptions,4could accrue custody credits at the rate 

of two days for every two days actually served, twice the rate as before.

Effective September 28, 2010, section 4019 was amended again to restore the 

presentence conduct credit calculation that had been in effect prior to the January 2010 

amendments, eliminating one-for-one credits. By its express terms, the newly created 

section 4019, subdivision (g), declared the September 28, 2010 amendments applicable 

only to inmates confined for a crime committed on or after that date. (Stats. 2010, ch. 

426, § 2.) 

Thereafter, the Legislature amended section 4019 yet again, reinstituting one-forone conduct credits and making this change applicable to crimes committed on or after 

October 1, 2011, the operative date of the amendments. (§ 4019, subds. (b), (c), & (h).) 

Diaz committed the crimes in case Nos. 626 and 864 before the effective date of this 

particular amendment.5

Diaz argues he is statutorily entitled to increased presentence conduct credits for 

the time in custody after October 1, 2011, though he acknowledges that the case on which 

he relies for this proposition6is no longer citable. Essentially, Diaz contends that the 

language of section 4019, subdivision (h) in its current form is internally inconsistent, 

and to harmonize the conflicting language, the court should find that he is entitled to 

enhanced credits even though his crimes were committed before October 1, 2011.

 

4

The enhanced credits were not available to defendants required to register as a 

sex offender, those committed for a serious felony (as defined in § 1192.7), or those who 

had a prior conviction for a violent or serious felony. (Stats. 2009-2010, 3d Ex. Sess., ch. 

28, §§ 50, 62 [former § 4019, subds. (b), (c), & (f)].)

5 According to the probation report, the charged offenses in case No. 626 were 

committed on May 17, 2010. The complaint in case No. 864 alleges that the charged 

offense was committed on August 5, 2011. 

6

People v. Olague (2012) 205 Cal.App.4th 1126, review dismissed March 20, 

2013.
7

The first sentence of section 4019, subdivision (h) states: “The changes to this 

section enacted by the act that added this subdivision shall apply prospectively and shall 

apply to prisoners who are confined to a county jail, city jail, industrial farm, or road 

camp for a crime committed on or after October 1, 2011.” This language is, on its face, 

clear and straightforward. The changes to the statute are to operate “prospectively,” and 

the conduct credit amendment applies only to defendants whose crimes were committed 

“on or after October 1, 2011.” (§ 4019, subd. (h).) Thus, the first sentence leads 

ineluctably to the conclusion Diaz is not entitled to conduct credit at the enhanced rate 

because he committed his crimes prior to October 1, 2011. Admittedly, however, section 

4019, subdivision (h)‟s second sentence appears to confuse matters. 

The second sentence provides: “Any days earned by a prisoner prior to October 1, 

2011, shall be calculated at the rate required by the prior law.” (§ 4019, subd. (h).) 

Arguably, this sentence implies any days earned by a defendant after October 1, 2011, are 

to be calculated at the rate required by the current law, without regard for when the 

offense was committed. 

Reading the sentence in this manner, however, renders the first sentence 

meaningless, and ignores the first sentence‟s express direction that the amendment is to 

apply prospectively. This we cannot do. “ „ “It is an elementary rule of construction that 

effect must be given, if possible, to every word, clause and sentence of a statute.” A 

statute should be construed so that effect is given to all its provisions, so that no part will 

be inoperative or superfluous, void or insignificant, and so that one section will not 

destroy another unless the provision is the result of obvious mistake or error.‟ ” 

(Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1269 (Rodriguez); see 2A 

Sutherland, Statutory Construction (7th ed. 2007) § 46.6, pp. 230-244.) 

Rather, we must look to another well-established rule of statutory construction to 

guide our interpretation of subdivision (h). “ „A statute is passed as a whole and not in 

parts or sections and is animated by one general purpose and intent. Consequently, each 
8

part or section should be construed in connection with every other part or section so as to 

produce a harmonious whole. Thus, it is not proper to confine interpretation to the one 

section to be construed.‟ ” (Rodriguez, supra, 14 Cal.App.4th at p. 1268; see 2A 

Sutherland, Statutory Construction, supra, § 46.5, pp. 189-201.)

As discussed above, the first sentence reflects the Legislature‟s intent that the 

enhanced conduct credit provision to apply only to those defendants who committed their 

crimes on or after October 1, 2011. Section 4019, subdivision (h)‟s second sentence, 

though certainly inartfully drafted, is an attempt to clarify that those defendants who 

committed an offense before October 1, 2011, are to earn credit under the prior law. 

(People v. Ellis (2012) 207 Cal.App.4th 1546, 1553; see also People v. Rajanayagam

(2012) 211 Cal.App.4th 42, 52 [§ 4019, subd. (h) merely reaffirms that defendants who 

committed their crimes before October 1, 2011, can still earn conduct credits, just under 

the prior law].) We decline to ignore the Legislature‟s clear intent in the first sentence of 

section 4019, subdivision (h) by relying on an implied interpretation of the second 

sentence.

We think the explicit language of the statute is clear: the 2011 amendment to 

section 4019 applies only to crimes that were “committed on or after October 1, 2011.” 

(§ 4019, subd. (h).) Diaz, having committed his crimes before that operative date, does 

not qualify for the credits available under the amended statute. (People v. Brown, supra, 

54 Cal.4th at p. 322, fn. 11; see People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397 

[reasoning in Brown applies to version § 4019 effective Oct. 1, 2011].) 

III. DISPOSITION

The abstract of judgment is modified to reflect that Diaz shall receive presentence 

credits of 222 days of custody credits plus 221 days of conduct credits for total 

presentence credits of 443 days in case No. SS091145. As modified, the judgment is 

affirmed.
9

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.