P. v. Glavish

Filed 9/24/18 P. v. Glavish 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL GLAVISH,
Defendant and
Appellant.
B287131
(Los Angeles County
Super. Ct. No. PA082516)
APPEAL from judgment of the Superior Court of Los
Angeles County, David Walgren, Judge. Affirmed as
modified.
David W. Beaudreau, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior

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Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Kristen J. Inberg,
Deputy Attorney General, for Plaintiff and Respondent.
_______________________
On May 21, 2015, defendant and appellant Michael
Glavish pleaded no contest to transporting
methamphetamine for sale (Health & Saf. Code, § 11379,
subd. (a) [count 1]),1 possessing heroin for sale (§ 11351
[count 2]), possessing methamphetamine for sale (§ 11378
[count 3]), transporting heroin for sale (§ 11352, subd. (a)
[count 4]), misdemeanor driving under the influence (Veh.
Code, § 23152, subd. (e) [count 5]), and two counts of
misdemeanor obstructing a peace officer (Pen. Code, § 148,
subd. (a)(1) [counts 6 & 7]). With respect to count 5, Glavish
admitted the allegation that he refused to submit to a
chemical test. (Veh. Code, §23612.) He further admitted
that he had suffered a prior conviction within the meaning of
section 11370.2, subdivision (a), for violation of section
11379, and served three prior prison terms under Penal
Code section 667.5, subdivision (b).
The trial court sentenced Glavish to 11 years in prison
in count 4, consisting of the upper term of 5 years, plus 3
years for the section 11370.2, subdivision (a) enhancement,
and an additional 3 years pursuant to Penal Code section
667.5, subdivision (b). Glavish received three consecutive
1 All future statutory references are to the Health and
Safety Code unless otherwise indicated.

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terms of 1 year each in counts 1, 6, and 7, plus 6 months in
count 5, for a total sentence of 14 years 6 months. The trial
court suspended execution of sentence and placed Glavish on
formal probation for 3 years.
In October 2017, the trial court revoked probation
following a contested hearing, and ordered Glavish to serve
the previously pronounced sentence of 14 years 6 months in
state prison.
Glavish contends the three-year term imposed under
section 11370.2, subdivision (a) must be stricken because his
prior conviction for violation of section 11379 no longer
constitutes a qualifying conviction for purposes of the statute
following the enactment of Senate Bill No. 180. He also
contends that the trial court miscalculated his custody
credits.
DISCUSSION2
Section 11370.2
Senate Bill No. 180 was signed by the Governor on
October 11, 2017, and became effective on January 1, 2018.
The bill narrows the scope of the three-year enhancement
under former section 11370.2, subdivision (a) to apply only to
prior convictions for narcotics sales involving a minor in
2 Because Glavish alleges only sentencing errors, the
facts underlying his convictions are unnecessary to the
appeal and we do not include them here.

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violation of section 11380. (§ 11370.2, subd. (a).) Prior to the
enactment of the bill, the three-year enhancement under
section 11370.2, subdivision (a) applied to 11 enumerated
offenses, including defendant’s prior conviction for violation
of section 11379. (Former § 11370.2, subd. (a).)
“When the Legislature has amended a statute to
reduce the punishment for a particular criminal offense, we
will assume, absent evidence to the contrary, that the
Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the
statute’s operative date.” (People v. Brown (2012) 54 Cal.4th
314, 323, fn. omitted.) This principle applies to statutes
governing penalty enhancements as well as statutes
governing substantive offenses. (People v. Nasalga (1996) 12
Cal.4th 784, 792.) In cases where the judgment is not yet
final, the recent amendments to section 11370.2 apply
retroactively. (People v. Millan (2018) 20 Cal.App.5th 450,
456 [section 11370.2, subdivision (c) applies retroactively].)
“[An] order granting probation constitutes a final
judgment of conviction under Penal Code section 1237
[citation], [and is] directly appealable.” (People v. Superior
Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325 (Rodas).)
Penal Code section 1237.5 and the implementing Rules of
Court provide 60 days to file a notice of appeal from the
probation order. (Pen. Code, § 1237.5; Cal. Rules of Court,
rules 8.304(a) & (b), 8.308(a).) “If the time to appeal the
probation order lapses without an appeal having been taken,
. . . the defendant may not thereafter challenge the

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underlying conviction when appealing a subsequent order
revoking probation and imposing a suspended sentence.”
(Rodas, supra, at p. 1325.)
In this case, the judgment of conviction imposing the
three-year enhancement under section 11370.2 became final
for retroactivity purposes in 2015, because Glavish did not
appeal the court’s order granting probation. He is therefore
not entitled to retroactive application of the 2018
amendment to section 11370.2, subdivision (a).
Custody Credits
The trial court awarded Glavish 782 days of
presentence custody credit consisting of 694 days of actual
custody and 88 conduct days.3 Glavish argues that he is
entitled to between 4 and 57 additional custody credits for
time served from September 11, 2015 through at least
September 14, 2015, and possibly through November 6,
2015. He bases this contention on the following facts: (1)
the minute order dated September 11, 2015 reflects that he
was remanded to county jail on that date, (2) the minute
3 The court calculated Glavish’s presentence credits as
follows: it awarded 180 days for the original 180-day jail
sentence imposed on May 21, 2015; 60 days for two months
spent in the Assessment Intervention Resources program;
365 days for a year spent in Maclay Recovery treatment
program; 89 days served in jail following Glavish’s arrest on
July 29, 2017; and 88 conduct credits for the 89 days spent in
custody.

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order dated September 14, 2017 reflects that he was to be
conditionally released to a representative of Recovery
Network Resources for the purposes of being transported to
that program, and (3) the record reflects that he completed
the Maclay Recovery program on November 6, 2016.
Given that he participated in the Maclay Recovery
program for one year, Glavish posits that he must have
commenced treatment there on November 6, 2015, and
therefore been in custody from September 11, 2015, until
that time. The Attorney General argues that the minute
order dated September 14, 2017 reflects that Glavish’s
status was “on probation,” and that there is no evidence in
the record indicating that he was in custody from that time
until November 6, 2015.
With respect to actual custody credits, “[Penal Code
section] 2900.5, subdivision (a), states in pertinent part . . . :
‘In all felony and misdemeanor convictions . . . , when the
defendant has been in custody, including, but not limited to,
any time spent in a jail . . . , all days of custody of the
defendant, including days . . . credited to the period of
confinement pursuant to Section 4019 . . . , shall be credited
upon his or her term of imprisonment . . . .’ (Stats. 2011, ch.
15, § 466, eff. Apr. 4, 2011, operative Oct. 1, 2011; see Stats.
1998, ch. 338, § 6, pp. 2718–2719, eff. Aug. 21, 1998,
operative Jan. 1, 1999; see also Stats. 2011, ch. 15, § 636;
Stats. 2011, ch. 40, § 3, eff. June 30, 2011.) A partial day
spent in county jail is counted as a day of custody for which a
defendant is entitled to credit. (People v. King (1992) 3

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Cal.App.4th 882, 886; People v. Smith (1989) 211 Cal.App.3d
523, 526.)” (People v. Jacobs (2013) 220 Cal.App.4th 67, 77–
78.) Conduct or “good time” credits are accrued at a rate of
two days for every two days of actual custody. (People v.
Chilelli (2014) 225 Cal.App.4th 581, 588.) There may only
be an even number of credits awarded under this scheme,
and rounding up is not permitted. (Ibid.) “The failure to
properly calculate custody and conduct credit is a
jurisdictional error that can be corrected at any time.” (Id.
at p. 591; People v. Scott (1994) 9 Cal.4th 331, 354.)
We agree with Glavish that the record establishes he
was in custody from September 11, 2015, through September
14, 2015, and is therefore entitled to an additional 4 custody
credits and 4 conduct credits. The judgment must be
modified and the abstract of judgment amended to award
Glavish 698 days of custody credit and 92 days of conduct
credit for a total of 790 days presentence custody credit.
In light of the conflicting evidence regarding Glavish’s
custody status between September 15, 2015, and November
6, 2015, we conclude the record before us is insufficient to
make a determination. The parties are free to litigate any
credit issue, if they so choose, in the trial court. (See People
v. Kennedy (2012) 209 Cal.App.4th 385, 394; People v. Fares
(1993) 16 Cal.App.4th 954, 958; People v. Hyde (1975) 49
Cal.App.3d 97, 102; see also Pen. Code, § 1237.1.)

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DISPOSITION
The judgment is modified to reflect 698 days of
presentence custody credit and 92 days of conduct credit for
a total presentence custody credit of 790 days. The
judgment is affirmed in all other respects. Upon issuance of
the remittitur, the superior court clerk is to prepare an
amended abstract of judgment and deliver a copy to the
Department of Corrections and Rehabilitation.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIN, 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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