People v. Givens CA3

DISCUSSION

1. Defendant Is Not Subject to the 15 Percent Limitation on Presentence Credit

Defendant first contends the trial court erroneously applied a 15 percent limit to his presentence conduct credit. He argues the limit does not apply because he was not convicted of a “violent felony.” The People concede error, and we agree.

Under section 2933.1, a defendant convicted of a felony may not accrue more than 15 percent presentence conduct credit pursuant to section 667.5, which further defines “violent felony” as any offense listed in subdivision (c) of section 667.5. (§§ 2933.1, subd. (a), 667.5, subd. (c)(1)-(23).)

1 Undesignated statutory references are to the Penal Code.

2 Here, neither of defendant’s current offenses constitutes a violent felony under section 667.5. Nor does his use of a deadly or dangerous weapon elevate either of his crimes to a violent felony. Accordingly, section 2933.1 does not apply, and defendant may accrue presentence conduct credits under section 4019.

The parties agree that under section 4019, defendant is entitled to 713 days of presentence credit (357 actual, 356 conduct). We will modify the judgment accordingly.

2. The Abstract of…