1

Filed 7/18/14 P. v. Ingram CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. HOADENA INGRA M, Defendant and Appellant. E058021 (Super.Ct.No. RIF10003145)
OPINION

APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed with directions. Kevin D. Sheehy, under appointment by the Court of Appeal , for Def endant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.2

A jury found defendant Hoadena Ingram guilty of failing to inform local law enforcement , with whom he was already registered as a sex offender , of his new address within five working days of moving to another law enforcement agency’s jurisdiction. (Pen. Code, 1 § 290.013, subd. (a).) Defendant admitted he suffered four prior serious and violent felony convictions (§§ 667, subd s. (c), (e)(2)(A), 1170.12, subd

. (c)(2)(A)) , but moved to strike th em for purposes of sentencing, arguing a three

- strike sentence of 25 years to life for his current conviction would constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The trial court denied the motion, and sentenced defendant to 25 years to life. On appeal, defendant contends : (1) his conviction under section 290.013, subdivision (a), was for a technical violation of a sex offender’s obligations under the Sex Offender Registrat ion Act (SORA) (§ 290 et seq.) and , therefore , a sentence of 25 years to life is disproportionate to the severity of his crime in violation of the Eighth
Amendment ; (2 ) given his age and life expectancy, 2 25 years to li fe is a de facto sentence of life without the possibility of parole (LWOP), in violation of the Eighth Amendment; (3) the trial court abused its discretion by denying his request to strike his prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal .4th 497 to

1 All further undesignated statutory references are to the Penal Code.

2 Defendant moved this court to take judicial notice of a life expectancy table contained in a National Vital Statistics Report prepared by the Centers for Disease Control and Prevention. We deferred ruling on the motion and, as explained post , we will deny the motion.3

avoid imposing a sentence of 25 years to life that is cruel and unusual under the Eighth
Ame ndment; and (4) the trial court erred by not awarding him the correct amount of custody and conduct credits toward his sentence

. We conclude defendant’s violation of s ection 290.013, subdivision (a), was not merely technical, and because his violation frus trated the purpose of SORA by leaving law enforcement unaware of his current residence an d whereabouts, a sentence of
25 years to life is not disproportionate to the severity of his crime. As for defendant’s second Eighth Am endment claim, we conclude the de facto LWOP cases do not assist defendant because they are limited to defendants who were juveniles when they committed their cri mes. Because we find no Eighth Amendment violati on , we conclude the trial court did not abuse its discretion by denying defe ndant’s Romero request based on his Eighth Amendment claims

. Finally, we conclude defendant is entitled to an additional day of credit for actual time spent in presentence credit, but to a lesser amount of conduct credits than awarded by the trial court, and we remand for the trial court to

enter a correct award. In all other r espect s, we affirm the judgment.
I. FACTS In the i nfor mation, the People alleged defendant was required to register as a sex
offen der under section 290, and alleged he failed to in form the Moreno Valley Police Department (MVPD), with whom he was registered, within five working days of moving to a new address in another law enforcement agen cy’s jurisdiction. (§ 290.013,
subd. (a). ) The People also alleged defendant suffered four pr ior strike convictions for4

serious and violent felonies within the meaning of section 667, subdivisions (c) and (e)(2)(A) , and section 1170.12, subdivision (c)(2)(A), as follows: ( 1) on November 20, 1984, defendant suffered a conviction for one count of ra pe (§ 261, subd. (a)) ; ( 2) on November 20, 1984, defendant suffered a conviction for one count of oral copulation (§ 288a, subd. (d)) ; (3) on November 20, 1984, defendant suffered a conviction for a second cou nt of oral copulation (§ 288a, subd. (d)); and ( 4) on December 1, 1993, defendant suffered a conviction for one count of oral copulation (§ 288, subd. (d)).
A t trial, d efendant stipulated he was required to register for life as a sex offender based on a prior conviction, and stipulated he knew he was r equired to inform law enforcement whe re he was last registered within five working days of moving to an address outside that law enforcement agency’s jurisdiction

. Sergeant Reinbolz of the Riverside County Sheriff’s D epartment testified that in
2010 he was an investigator with the MVPD assigned to investigate sexual as sault and child abuse cases. I n 2011 , Reinbolz began registering sex offenders for the MVPD and

was the department’s custodian of records for sex offender registration files. Reinbolz testif ied about the MVPD’s procedures for registering sex offenders. W hen a sex offender came to register at a Moreno Valley police station, they provided their personal information, including the address where t hey were going to be living , and provided a finge rprint. An investigator or sworn deputy took the information and complete d form 8102 ( mandated by the Dep t. of Justice (DOJ) ) , which the registrant verified as correct and then signed . Once the form was completed, the registrant was given a copy , and the MVPD maintained a hard copy in a locked cabinet at that particular station or at the5

warrant ’ s division of the s heriff’s d epartment. An office assistant then enter ed t he information from the form into a computer database maintained by the DOJ and accessi ble by l aw enforcement agencies throughout the state. Reinbolz testified sex offenders who are required to regis ter pursuant to section 290 must notify local law enforcement within five working days of first moving to an address within that agency’s jurisd iction. The registered sex offender must annually renew their registration with local law enforcement within five working days of their birthday , and must inform the law enforcement agency within fiv e working days if they

move to another address within th at law enforcement agency’s jurisdiction

. Finally, i f the registered sex offender subsequently moves to an address outside of that law enforcement agency’s jurisdiction, they must inform the agency with whom they are currently registered of the new addres s within five working days of the move. This information is printed on the back of form 8102. Reinbolz identified exhibit No. 4, which was a verified copy of the form 8102 d efendant completed on December 4, 2008, when he moved to the city of Moreno Valley and registered as living in an apartment on David Lane. Reinbolz also identified exhibit
No. 5, which was a certified copy of defendant’s latest sex offender registration form on file with MVPD and indicated defendant renewed his registration in December 2009 with
the same David Lane address

. Reinbolz testified he found no other registration for m indicating d e fendant “deregistered” from MVPD’s jurisdiction, and Reinbolz testified the last registered address on file for defendant was on David Lane in More no Valley. Had defendant “deregist ered” his David Lane residence, a copy of th e form would have been6

found in the MVPD files. Reinbolz testified that, as the custodian of records, the registration forms on file for def endant would lead him to believe def endant st ill lived on David Lane. Investigator Casey with the Riverside County District Attorney’s Office (RCDA) testified she was assigned to a compliance team with the Sexual Assault Felony Enforcement (SAFE) T ask F orce , which checked on registered sex o ffenders to ensure they were living at their registered addresses. Each month , Casey’s team performed door

- to

- door checks on registered sex offenders in one zip code of Riverside County. In May 2010, Casey’s team checked re gistered sex offenders in the z ip code that included the David Lane residence in Moreno Valley where defendant had been registered. The members of Casey’s team were given a stack of information packets for each registered sex offender, and they traveled to the last known residence to v erify with the registrant, a family member, or a neighbor, that the registrant still lived there. Casey received the packet for defendant, and on May 18 she traveled to the David Lane address . Casey knocked on the door to the residence , but no one answer ed. She then knocked on the door of the neighboring apartment, and spoke to a woman who answered the door. Casey obtained some information from the woman and then referred the case to another investigator.
Inves tigator Cadwell , also with RCDA and a membe r of the SAFE task force, testified he performs fo llow

- up investigations when a member of the compliance team is unable to verify that a registered sex offender still lives at their last registered address. Cadwell testified defendant’s case was referred to him on June 7, 2010. He chec ked the7

Megan’s Law Web site , the DOJ database , and the har d copy of defendant’s form 8102 to make sure he had the correct last registered address for defendant, and saw that as of
June 7 defendant was still registered as li ving at the David Lane address. Cadwell could not tell from those sources whether defendant had “deregistered” his David Lane address. The next day , Cadwell drove to the David Lane address a nd knocked on the door. A man named Patterson answe red the door and indicated he wa s the current resident of the apart ment. After speaking to Pa tterson, Cadwell concluded defendant’s whereabouts
were unknown. Cadwell then contacted the manager of the apartment complex and asked her if she knew where defendant wa s. Th e information Cadwell gathered from the apartment manager led him to believe defendant had moved to the jurisdiction of another law enforcement agency, so he contacted that agency. Cadwell spoke to Detective McCullough of the Rialto Police Department , and based on the information he received from McCullough, Cadwell submitted defendant’s case to the district attorney’s office.
Dete ctive McCullough testified she is assigned to the Rialto Police Department’ s special victims unit. On June 17, 2010, McCulloug h spoke to defendant at the Rialto Police station. McCullough asked defendant if he knew he was required to register as a sex offender in Rialto, and defendant said he was there to register. McCullough also asked defendant if he “deregistered” out of his latest place of registration in Riverside County. D efendant told the detective he did not know he was required to “register out” of his last place of registration. The detective sh owed defendant a form 8102 he had previously completed in Rialto, and def endant said he may have signed the form but did8

not understand it. Defendant informed the detective he first registered as a sex offender
in 1989, but he did not know he was required to register out of one place when moving to another. Finally, defendant told McCullough he was already living in Rialto at the time of the interview, and he admitted he did not register out of Riverside County and had not yet registered his new address in Rialto. Ms. Parker testified she manages four apartment buildings in th e Inland Empire, including one on David Lane in Moreno Valley. Parker testified that defendant and his wife leased their apartment on David Lane in March 2008, and they vacated the apartment in April 2010. The following month, defendant spoke to Parker a nd told her he was living in Rialto at the time. A jury found defendant guilty on the sole count of failing to inform the MVPD within five working days of moving from its jurisdiction

. Defendant waived his right to a
trial on the four prior conviction all egations , and admitted them as they were alleged

. 3

3 In the respondent’s brief, the People contend defendant admitted that in 1984 he suffered a conviction for rape in concert, in violation of section 261, subdivision (a)(2), and section 264.1. Not so. The information alleged that on November 20, 1984, defendant was “convicted of the crime of RAPE, a serious an d violent felony, in violation of Penal Code section 261, subdivision (a),” and in open court defendant admitted that “on November 20th, 1984, [he was] convicted of a strike offense of [section] 261A . . . .” The People did not plead and prove, and defend ant did not admit, that the prior rape conviction was for a rape committed in concert.9

Prior to sentencing, defendant requested that the trial court strike his prior strike convictions pursuant to section 1385 and Romero , supra , 13 Cal.4th 497 , to avoid imposing a sentence of 25 years to li fe under the t hree s trikes l aw . Among othe r things, defendant argued imposition of a sentence of 25 years to life would be a grossly disproportionate punishment for his conviction of failure to register in violation of se ction 290.013, subdivision (a) and , therefore , would violate the Eighth Amendment prohibition of cruel and unusual punishment. At the hearing on defendant’s Romero request , the trial court noted it had previously stricken strike priors in similar sex offender registration cases. However, after considering the seriousness and violent nature of defendant’s admitted strike priors, as well as his long criminal history

— which included one prior conviction for failing to register pursuant to section 290 and a p ending charge of lewd exposure

— the c ourt denied the request

. The court sentenced defendant to 25 years to life, and awarded defendant 549 days of credit for actual time spent in pr esentence custody and another 548 days of conduct credit pursuant to section 4019, for a total of 1,097 days. D efendant timely appealed.10 II. DISCUSSION
A. DEFENDANT’S SENTENCE OF 25 YEARS TO LIFE DOES NOT
CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION
OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION Defendant contends his sentence of 25 years to life violates the Eighth
Amendment to the United States Constitution 4 because that severe a punishment is disproportionate to his purportedly technical violation of SORA, and because it is a de facto LWOP sentence f or a man of his age and with his life exp ectancy. Because the trial court denied his Romero request to strike some or all of his strike priors to avoid such an unconstitutional sentence, defendant argues the trial court abused its discretion. We find no Eight h Amendment inf irmity in defendant’s sentence and , therefore , find no abuse of di scretion by the trial court.

4 Defendant’s cruel and unusual punishment argument in his written Romero request was premised exclusively on the Eighth Amendment and made no mention whatsoever of the California Constitution. Nor did defendant’s appointed trial counsel argue during the hearing that a sentence of 25 years to life would constitute cruel or unusual punishment in violation of article I, section 17 of the California Constitution. Because defendant forfeited any claim under the California Constitution, we confine ourselves to his claims under the federal constitution. (See, e.g., In re Coley (2012) 55 Cal.4th 524, 537, fn. 8 ( Coley ).) In any event, as the parties conceded at oral argument , the result would be the same even if we were to address the state constitutional argument.11 1. Defen dant’s Violation of Section 290 .013, Subdivision (a) , Was Not Technical in Nature, and a Sentence of 25 Years to Life I s Not a Disproportionate Punishment The Eighth Amend ment prohibits sentences that are grossly disproportionate to the crime. ( Ewing v. California (2003) 538 U.S. 11, 23

- 24.) In applying this principle of proportionality, a court begins by comparing the gravity of the o ffense which, in the case of a t hree s trikes sentence , includes both the defendant s’ current crime and history of recidivism, with the severity of the sentence. ( Coley , supra , 55 Cal.4th at p. 542.) If the comparison leads the revie wing court to draw an inference of disproportionate ly , it m ust then compare the sentence to sentences imposed on similar defendants in the same jurisdiction and to the sentences imposed on similar defendants in other jurisdictions. ( Ibid .) If this inter

- and intra

- jurisdictional comparison validates the court’s initial inference of disproportionality, the sentence is cruel and unusual. ( Ibid .) At trial, d efendant stipulated he is required to register for life under section 290 as a convicted sex offender. “Section 290 ‘applies automatically to the enumerated
of fenses, and imposes on each person convicted a lifelong obligation to register.’ [Citations.] Registration is mandatory [citation], and is ‘not a permissible subject of plea agreement negotiation’ [citation]. It is intended to promote the ‘“state intere st in controlling crime and preventing recidivism in sex offenders.”’ [Citation.] As this court has consistently reiterated: ‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar12

offenses in the future. [Citation.]’ [Citations.] Plainly, the Legislature perceives that sex offenders pose a ‘continuing threat to society’ [citation] and re quire constant vigilance. [Citation.]” ( Wright v. Superior Court (1997) 15 Cal.4th 521, 527 ( Wright ).) Defendant also stipulated he knew of his obligation to inform law enforcement where he was last registered within five working days of moving to a new address within the jurisdiction of another law enforcement agency. “Under [section 290 .013, subdivision (a)], whenever a person required to register changes addresses, he or she must notify the last registering agency of the move within five working days. The requirement to give notice of the move applies regardless of whether the registrant knows his or her new address. [Citation.] The duty to notify the agency within five days is triggered by any change of address or location. [ Citations.]” ( People v. Villegas (2012) 205 Cal.App.4th 642, 647.) “Supplemental address change information helps law enforcement agencies keep track of sex offenders who move within the same city or county or are transient. In large cities such as Los Angeles or huge countie s like San Bernardino, where offenders can easily relocate without reregistering, [fo rmer] section 290[, subdivision ] (f) [now section 290.013] seeks to prevent them from disappearing from the rolls. Ensuring offenders are ‘readily available for police su rveillance’ [citation] depends on timely change

- of

- address notification. Without it law enforcement efforts will be frustrated and the statutory purpose thwarted. The statute is thus regulatory in nature, intended to accomplish the government’s objective by mandating certain affirmative acts. Compliance is essential to that objective; lack of compliance fatal.” ( Wright , supra , 15 Cal.4th at p. 527.)13

In Coley , our Supreme Court addressed whether a sentence of 25 years to life under the three s trikes l aw , for a conviction of failing to register under section 290, violated the Eighth Amendment. In that case, the defendant had a lengthy and extensive criminal history and suffered convictions for sex offenses , which required him to register pursuant to sect ion 290 upon his release from state prison. ( Id . at pp. 531

- 532.) Upon release, the defendant failed to register with local law enforcement. ( Id . at p. 532.) He was arrested during a parole sweep and was charged with failing to register as a sex offend er upon arriving in a jurisdiction and with failing to annually update his registration within five working days of his birthday. ( Id . at pp. 532

- 533.) The People presented evidence that the defendant never registered as a sex offender upon his release on parole and , at the time of his arrest , he told police he never intended to register and wanted to stay away from law enforcement altogether. ( Coley , supra , 55 Cal.4th at pp. 533

- 534.) The defendant testified he did register u pon his release from prison, but that he did not know he was required to annually update his registration. ( Id . at p. 534.) A jury acquitted the defendant of failing to register upon his release from state prison, but found him guilty of failing to update his registration within fi ve working days of his birthday. ( Id . at p. 535.) The defendant admitted to suffering three prior seriou s or violent felony convictions and requested that the trial court strike at least two of them in the interest of justice

. He contend ed a sentence of 25 years to life for his current conviction would constitute cruel and unusual punishment. ( Id . at p. 535.) In denying the request to strike the prior convictio ns, the trial court stated it disbelieved the defendant ’s testimony that he did, in fact, reg ister upon release from state prison. ( Id . at14

pp. 535

- 536.) The court then sentenced the defendant to 25 years to life under the three strikes l aw. ( Id . at p. 536.)
In Coley , our Supreme Court noted four appellate courts had already addressed the
same E ighth Amendment issue in the context of a sentence of 25 year s to life for a SORA violation , and reached opposite conclusions. Two courts

– People v. Carmony (2005) 127 Cal.App.4th 1066 ( Carmony II ) and Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875 ( Gonza lez )

— concluded a sentence of 25 years to life violated the Eighth Amendment where the SORA violation was a passive, nonviolent, and regulatory violation, where the defendant did not evade law enforcement, and where law enforcement knew all along of the def endant’s whereabouts because he had regularly registered and still lived at the same address. ( Coley , supra , 55 Cal.4th at pp. 544

- 550.) In contrast, two courts

—

People v. Nichols (2009) 176 Cal.App.4th 428 ( Nichols ) and Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784 ( Crosby )

—held a sen tence of
25 years to life did not violate the Eighth Amendment when the SORA violation was not merely technical and resulted in law enforcement not knowing the defendant’s current whereabouts, thereby frustrating the purpose of SORA. ( Coley , supra , 55 Cal.4th at
pp. 550

- 551.) Rather than choose one line of authority over the other, our Supreme Court
in Coley held the case before it was governed by the latter line and found no Eighth Amendment violation. ( Id . at pp. 551

- 552 , 561

- 562.)15

Defendant contends his case is governed by Carmony II and Gonzalez because his failure to “deregister” in Moreno Valley was a passive, technical violation. According to defendant, he misunderstood his obligation under section 290.013, subdivi sion (a), and his failure to comply with its dictates was not the result of a deliberate intent to evade law
enforcement . True, unlike in Nichols , Crosby , and Coley , the People introduced no evidence defendant was actively avoiding law enforcement or that he intended to not inform MVPD of his move to Rialto. However, the holding s in those cases were not based solely on a defendant ’s active evasion of law enforcement. The c ourts were careful to note the violation s resulted in law enforcement being unaware of the defendant s’ current whereabouts, which frustrated the purpose of SORA. ( Nichols , supra , 176 Cal.App.4th at p. 437 [“defendant’ s failure to register thwarted the fundamental purpose of the registration law, thereby leaving the public at risk”] ; Cro sby , supra , 678 F.3d at p. 794 [“ [defendant] was no longer living at his last registered address at the time of his arrest, and his failure to register impeded the police’ s ability to find him for surveillance”] .) As the court in Crosby noted, “In Gonzalez , we concluded that a conviction for failure to register after an address change is directly related to the state’s interest in ensuring that it knows the whereabouts of its sex offenders. [Citation.] This distinction puts the conviction here [ under form er section 290, subdivision (f), now section 290.013, subdivision (a)] in stark contrast to the mere technical violation for failure to annually register. [Citation.] [¶] The California Court of Appeal s has also held that this distinction is crucial.” ( Crosby , supra , 678 F.3d at p. 7 9 3.) T he courts in Carmony II and Gonzalez concluded failure to annually register was technical and harmless because16

the defenda nts there made good faith effort s to regularly register and to keep their registration informat ion updated, and because the violation s did not result in law

en forcement being unaware of the defendants’ whereabouts . ( Carmony II , supra , 127 Cal.App.4th at p. 1079; Gonzalez , supra , 551 F.3d at pp. 884

- 885.)
He re, there can be no dispute defendant’s fa ilure to timely inform the MVPD of his move to Rialto frustrated the purpose of SORA. Sergeant Reinbolz testified that, although defendant registered with the MVPD in 2008 and properly renewed his registration in 2009, the MVPD had no record of defendant informing it of his move to Rialto, timely or otherwise. Reinbolz also testified the MVPD’s records would lead him to believe defendant still lived on David Lane in Moreno Valley. Investigator Casey testified that, based on what the MVPD’s records showed as of mid

- May 2010, she traveled to the David Lane address to see if defendant still resided there. When Casey was unable to locate defendant at the David Lane residence, she referred the case for future investigation. As part of his follow

- up investigat ion, Investigator Cadwell reviewed the Megan’s
Law Web site , the DOJ sex offender database, and the last form 8102 about defendant in the MVPD’s records , and confirmed defendant’s last registered address wa s on David Lane in Moreno Valley. Cadwell could n ot tell from these sources whether defendant “deregistered” his David Lane residence. When Cadwell visited the David Lane address on June 8, 2010 , he spoke to the current resident of that address and to the apartment manager, which lead Cadwell to believe defendant had moved to an address within the jurisdiction of another law enforcement agency. The People introduced evidence that17

defendant moved from his David Lane apartment in April 2010, and that in May 2010 he spoke to the manager of his old apartmen t building and told her he was living in Rialto at the time. Finally, Det ective McCullough testified she spoke to defendant at the Rialto Police sta tion on June 17, 2010, and during the interview defendant admitted he did not timely register upon moving b ack to Rialto and he did not “register out” of Moreno Valley upon moving. For almost three months defendant’s then

- current residence in Rialto was unknown to law enforcement in Moreno Valley and Rialto, and at least two investigators were unable to find hi m using the information he provided the last time he registered. Given the “crucial” distinction between defendant’s violation and a mere technical violation of failure to annually register ( Crosby , supra , 678 F.3d at p. 793), we conclude defendant’s case is governed by the decision s in Coley , Nichols , and Crosby . Defendant does not dispute the extent and severity of his criminal history, including but not limited to the four serious and violent strike priors he admitted. In light of defendant’s serious criminal history and the seriousness of his current offense, we conclude the sentence of 25 years to life is not disproportionate. Therefore, we need not engage in inter

- or intra

jurisdictional comparison. ( Coley , supra , 55 Cal.4th at p. 542.)18 2. Decis ions Prohibitin g De Facto LWO P Sentences A s a Violation of the Eighth Amendment Apply Solely to Defendants Who Were Juveniles A t the Time of

Their Crimes, and Do Not Apply to Defendant
In Graham v. Florida (2010) 560 U.S. 48 ( Graham ) and Miller v. Alabam a (2012) 567 U.S.

___ [132 S.Ct. 2455] ( Miller ) , the United States Supreme Court held a mandatory sentence of life without the possibility of parole or its functional equivalent, for homicide and nonhomicide crimes, constitutes cruel and unusual punishment when imposed on a defendant who was a juvenile at the time of the crime. (See People v. Caballero (2012) 55 Cal.4th 262, 266

- 268 ( Caballero ) .) Applying those cas es, our Supreme Court held the Eighth Amendment also prohibits sentencing a defendant who

wa s a juvenile at the time of the non homicide crime to a term of impriso nment with a parole eligibility date that falls outside his or her natural life expectancy. ( Id . at p. 268.) In each of those decisions, the courts relied on the facts t hat a juvenile ’ s brain is not yet fully developed and , therefore , juveniles are more capable of changing than adult offenders. ( Id . at p. 266

- 268 & fn. 4.) Sentencing a juvenile offender to prison for what amounts to a life sentence will unconstitutionally deprive the offender of the chance to obtain parole by demonstrating growth and maturity. ( Id . at p. 266.)1 9

Defendant does not discuss the United States Supreme Court cases in Graham and Miller , and he only briefly discusses Caballero in the context of defining what life expectancy means and how to determine whether a sentence for a term of years constitutes a de facto LWOP sentence. Because those cases and their progeny apply solely to juvenile offenders, and defendant cites no decisional authority whatsoever for

a pplying the de facto LWOP cases to a defendant who was 57 years old when he committed his crime, we find no Eighth Amendment violation. (See United States v. Marshall (6th Cir. 2013) 736 F.3d 492, 497

- 500 [holding Miller did not apply to a defendant who w as between the ages of 18 and 20 when he committed his crime]; United States v. Farley (11th Cir. 2010) 607 F.3d 1294, 1342, fn. 34 [noting Graham did not apply to a defenda nt who was in his late 30s when he committed his crime ].) 5
3. The Trial Court Did N ot Abuse Its Discretion b y Denying Defendant’s Romero Motion to Avoid an Unconstitutional Sentence o f 25 Years to Life Finally, defendant contends the trial court abused its discretion by denying h is request to strike his prior serious and violent feloni es pursuant to Romero . Defendant’s sole argument on appeal for reversal is that a sentence of 25 years to life for his conviction under section 290.013, subdivision (a), was a de facto LWOP sentence and was disproportionate to his crime, and the trial cou rt should have stricken the priors to

5 The life expectancy table, of which defendant requests we take judicial notice, is therefore not relevant to determining the merits of this appeal, so the requ est is denied. ( People v. McKinzie (2012) 54 Cal.4th 1302, 1326.)20

avoid imposing an unconstitutional sentence. He presents no other basis for finding the trial court abused its discretion. Because we conclude defendant’s sentence of 25 years to life is proportional to the severity of his crime, and does not constitute a prohi bited de facto LWOP sentence , we find the trial court did not abuse its discretion by denying defendant’s Romero request

. B. THE TRIAL COURT AWARDED DEFENDANT AN INCORRECT AMOUNT
OF CREDIT FOR TIME SPENT IN PRE SENTENCE CUSTODY AND AN
INCORRECT AMOUNT OF CONDUCT CREDIT UNDER SECTION 4019 The trial court awarded defendant credit for 549 days spent in presentence custody, and 548 days of conduct credit under section 4019, for a total of 1,097 days of
credit toward his sentence . Defendant contends the trial court did not a ward him the correct amount of credits because it allegedly used an incorrect arrest date. Using a much earlier arrest date, and the appropriate version of section 4019, defendant argues he is

en titled to credit for 947 day s in presentence custody and 472 days of conduct credit, for a total of 1,419 days. The People contend defendant is not entitled to an additional award of credits. Instead, using the same arrest date as the trial court, and ap plying the same correct version of section 4019 as defendant , the People contend defendant is entitled to 551 days for time spent in presentence credit and to 274 days of conduct credit, for a total of 825 days.21

Defendant contends the record dem onstrates he wa s arrested in this case on
June 17, 2010, and not on July 18, 2011, as the People contend. But the portions of the record d e fendant cites do not support his conclusion. The probation report indicates defendant was arrested by the Rialto Police Depa rtment on June 17, 2010, and booked for felony indecent exposure and for failing to update his sex offender registration. This corresponds with Detective McCu llough’s testimony that defendant was interviewed at
the Rialto Police station on J une 17, 2010, and admitted he did no t timely register upon moving back to Rialto. But all this shows is defendant was arrested on June 17, 2010 , for crimes allegedly committed in San Bernardino County . This is borne out by the notation in the probation report that, at the time of his sentencing in this case, defendant had charges pending in S an Bernardino County f or felony indecent exposure and for failure to register in violation of section 290, subdivision (b). Defendant is not entitled to credit in this case for ti me he spent in custody on the San Bernar dino charges. (§ 2900.5, subd. (b).)
T he probati on report clearly indicates a declaration in support of an arrest warrant was sworn out in Riverside County on July 28, 2010, bu t defendant was not arrested in this c ase until July 18, 2011 , probably because he was in custody in San Bernardino

. This corresponds with defendant ’s in

- custody arraignment on July 20, 2011 . Defendant’s appointed trial coun sel relied on the July 1 8, 201 1 , arrest date during sentencing becau se she agreed with the trial court’s credit calculation.22

Applying the correct arrest date of July 18, 2011, and the sentencing date of January 18, 2013, we conclude defendant is entitled to 550 days of credit for actual time spent in presentence custody. The trial court’s figure of 549 days is likely the result of failing to include the extra day in February 2012 for leap year, of which we take judicial notice. (Evid. Code, §§ 452, subd. (h), 459, subd. (a).) The parties agree that , because defendant’s offense occurred on June 7, 2010, hi s award of conduct credits is governed by the former version of section 4019 which went into effect on January 25, 2010 , and not by the more generous formula applied by the trial

court

. We agree. (Former § 4019 , as ame nded by Stats. 2009, 3d Ex. Sess. 2009

- 2010 , ch. 28, § 50 ; People v. Verba (2012) 210 Cal.App.4th 991, 993

- 994 .) Under that version of former section 4019, a defendant was entitled to two days credit for every four days spent in presentence custody. (For mer § 4019, subds. (b), (c); People v. Brown (2012) 54 Cal.4 t h 314, 318 ( Brown ).) A limitation on this formula for prisoners required to register as sex offenders under section 290 was subsequently deleted ( Brown , at pp. 318

- 319, fn. 5), and the People co ncede defendant is entitled to two days of credit for every four days he spent in presentence custody. Applying this correct formula, defendant is entitled to 274 days of conduct credit (550 ÷ 4 = 137.5; 137 × 2 = 274). Therefore, defendant is entitled t o a total credit award o f 824 days (550 + 274 = 824).23 III. DISPOSITION
T he trial court is directed to make an amended award of 550 days of credit for time spent in presentence custody and 274 days of conduct credit under former section 4019 , for a total award of 824 days. The clerk of the superior court shall prepare an amended minute order of sentencing and abstract of judgment, and shall forward them to the Department of Corrections and Rehabilitation. In all other respects , the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.
We concur:

KING J.

MILLER J.