Filed 7/16/21 P. v. Velarde CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B306156
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA122315)
v.
ROBERT VELARDE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rogelio G. Delgado, Judge. Affirmed as
modified.
Nicholas Seymour, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill and Heidi
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Robert Velarde of carjacking and driving
or taking a vehicle without consent. He contends on appeal that
the trial court erred in imposing four prior prison term
enhancements and that it miscalculated his custody credits for
the time he spent in presentence custody. The People agree with
Velarde’s contentions. We strike the prior prison term
enhancements and award Velarde an additional four days of
custody credit. In all other respects, we affirm.
BACKGROUND
On October 20, 2019, Velarde carjacked the victim’s car
from a parking lot. That same day, officers arrested Velarde at a
nearby motel where they found the stolen vehicle.
An information charged Velarde with carjacking (Pen.
Code,1 § 215, subd. (a); count 1) and driving or taking a vehicle
without consent (Veh. Code, § 10851, subd. (a); count 2). The
information also alleged that Velarde had four prison priors
under section 667.5, subdivision (b).
A jury convicted Velarde of both counts. On May 15, 2020,
the trial court sentenced Velarde to five years in state prison, and
awarded him credit for 206 actual days he had spent in custody
and 30 days for good time and work credit. With respect to the
prison priors, the trial court imposed the enhancements but
struck the punishment.
Velarde appealed.
1 All
further undesignated statutory references are to the
Penal Code.
2
DISCUSSION
I. The prior prison term enhancements
Velarde contends and the People concede that the trial
court erred in imposing the four prior prison term enhancements
under section 667.5. We agree.
Under the prior version of section 667.5, subdivision (b), the
trial court was required to impose a one-year enhancement for
each prior separate prison term served for “any felony.” (Stats.
2018, ch. 423, § 65.) In 2019, Senate Bill No. 136 amended
section 667.5 to apply only to a prior prison term served “for a
sexually violent offense as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b).)
Here, Velarde’s prior prison terms were based on
convictions for burglary (§ 459), battery (§ 243, subd. (d)),
possession of drug paraphernalia while in prison (§ 4573.8), and
assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)). The trial court acknowledged the
amendments to section 667.5, under which the prison terms for
Velarde’s prior convictions are not subject to enhancement, but
nevertheless imposed the one-year prior prison term
enhancements. The court, however, ordered “the punishment”
stricken, citing “the recent change [in] the law.” This was in
error. Because Velarde’s prior prison terms were not for sexually
violent offenses as defined in Welfare and Institutions Code
section 6600, subdivision (b), the sentence enhancements could
not lawfully be imposed. (People v. Lopez (2019) 42 Cal.App.5th
337, 340–341.) It is not therefore the punishment, but the
enhancements themselves that must be stricken.
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II. Calculation of custody credits.
Velarde contends and the People concede that the trial
court erred in calculating the number of custody credits for the
time Velarde spent in presentence custody.
A criminal defendant is entitled to credit for time served in
presentence custody, including extra time awarded for good
behavior and for work. (§§ 2900.5, subd. (a), 4019, subd. (a)(1).)
Generally, a defendant is entitled to four days of custody credit
for every two days spent in actual custody. (§ 4019, subd. (f).)
However, if the defendant is convicted of a violent felony, the
credit is limited to 15 percent of the actual custody time.
(§ 2933.1.) We can resolve presentence credit miscalculations if
doing so will serve the interests of judicial economy (People v.
Jones (2000) 82 Cal.App.4th 485, 493), but it is the appellant’s
burden to affirmatively demonstrate his entitlement to credit for
any particular time period (People v. Jacobs (2013) 220
Cal.App.4th 67, 81).
Here, Velarde has demonstrated that the trial court
miscalculated the number of days he spent in presentence
custody and further erred by basing its award of good time and
work credit on its miscalculation. The trial court awarded
Velarde 206 days of actual time and 30 days for good time and
work credit. Velarde, however, was in custody between
October 20, 2019 and May 15, 2020 for a total of 209 days.
Velarde was therefore entitled to three additional days spent in
actual custody plus one additional day for good time and work
credit under section 4019. As such, the trial court should have
awarded Velarde four additional custody credits.
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DISPOSITION
The judgment is modified to include four additional custody
credits and to strike the four 1-year enhancements imposed
under Penal Code section 667.5, subdivision (b). The trial court
is directed to prepare an amended abstract of judgment and
forward a copy to the Department of Corrections and
Rehabilitation. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
THOMAS, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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