Filed 9/3/15 P. v. Delgado CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B255959
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA131423)
v.
ALEJANDRO F. DELGADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County of Los Angeles,
Arthur M. Lew, Judge. Affirmed and remanded with instructions.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Jason Tran, Supervising
Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and
Respondent.
INTRODUCTION
A jury found defendant and appellant Alejandro Delgado (defendant) guilty of
first degree burglary. On appeal from his judgment of conviction, he contends that the
trial court did not award him the amount of conduct credit to which he was entitled and
requests that we conduct an independent review of the sealed transcript of the in camera
hearing on his Pitchess1 motion to ensure that all discoverable materials were turned over
to him. The Attorney General agrees that the trial court did not award defendant the
amount of conduct credit to which he was entitled and does not object to an independent
review of the sealed transcript of the in camera hearing on his Pitchess motion.
We hold that the trial court incorrectly calculated the number of days of conduct
credit to which defendant was entitled and, after independently reviewing the sealed
transcript of the in camera hearing on defendant’s Pitchess motion, conclude that the trial
court did not abuse its discretion in ruling on defendant’s Pitchess motion. We therefore
remand the matter to the trial court with instructions to amend the abstract of judgment to
reflect that defendant was awarded the number of days of presentence conduct credit to
which he was entitled.
PROCEDURAL BACKGROUND2
The jury found defendant guilty of first degree burglary in violation of Penal Code
section 459.3 The trial court sentenced defendant to nine years in state prison. The trial
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2
Because the issues on appeal do not involve the facts of the crime, we omit those
facts from the opinion.
3
All further statutory references are to the Penal Code unless otherwise indicated.
2
court awarded defendant 125 days of actual custody credit and 37 days of conduct credit
for a total of 162 of custody credit.
DISCUSSION
A. Conduct Credit
Defendant contends that the trial court’s award of 37 days of conduct credit was
incorrect and that he was entitled instead to an award of 124 days of conduct credit. The
Attorney General agrees with defendant.
Defendant was entitled to conduct credit under section 4019 because the 15%
conduct credit limitation for violent felonies in section 2933, subdivisions (a) and (c) did
not apply to his crime.4 Under subdivisions (f) and (h) of section 4019, presentence
conduct credit accrues at a rate of two days credit for every two days served. Defendant
was taken into custody on December 27, 2013, and he was sentenced on April 30, 2014.
He was therefore in custody 125 days for which he received actual custody credit, and he
was entitled to an additional award of conduct credit of 124 days. The abstract of
judgment must be modified accordingly to reflect an award of 124 days of conduct credit
and a total award of presentence custody credit of 249 days.
B. Review of Pitchess Hearing
Defendant requests that we independently review the sealed transcript of the trial
court’s in camera hearing on his Pitchess motion and the Attorney General does not
object. Under People v. Mooc (2001) 26 Cal.4th 1216, 1229-1232, upon a request from a
defendant, an appellate court may review the sealed transcript of a trial court’s in camera
Pitchess hearing to determine whether the trial court disclosed all relevant documents. A
4
First degree burglary is not a violent felony unless another person, other than an
accomplice, is present in the dwelling during the burglary. (§ 667.5, subd. (c)(21).)
3
trial court’s ruling on such a motion is reviewed for abuse of discretion. (People v.
Samayoa (1997) 15 Cal.4th 795, 827.)
In response to defendant’s request, we reviewed independently the sealed
transcript of the trial court’s in camera hearing on defendant’s Pitchess motion. Based on
that review, we conclude that the trial court did not abuse its discretion in ruling on the
Pitchess motion following the in camera hearing.
DISPOSITION
The matter is remanded to the trial court with instructions to modify the abstract of
judgment to reflect that defendant was entitled to 124 days of conduct credit and a total
award of 249 days of presentence custody credit. In all other respects, the judgment of
conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KIRSCHNER, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
4