People v. Silva CA4/1

California Court of Appeal · D068855 · 2016-06-22 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN335445-2
Trial judge: Blaine K. Bowman
Outcome: modified — Affirmed as modified and remanded with directions.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Gilbert Nares, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:47Z · confidence high

The trial court sentenced the defendant to prison and limited her preconviction conduct credits to 15 percent based on the conviction for attempted residential burglary. The Court of Appeal affirmed the judgment as modified, holding that attempted residential burglary is not a serious felony under Penal Code section 667.5, subdivision (c)(21), and remanded for recalculation of full conduct credits.

Ruling reviewed	Standard	The court	The model
Limitation of preconviction conduct credits to 15 percent under Penal Code section 2933.1 “Since the court improperly limited Silva's conduct credits, we will remand the case to the superior court to recalculate the presentence credits.”	de novo	error	agree with court The appellate court correctly applied the rule that the definition of 'serious felony' in Penal Code section 667.5, subdivision (c)(21) does not extend to attempts to commit such felonies. Because the defendant was convicted of attempted burglary, not completed burglary, the statutory limitation on conduct credits did not apply, and she was entitled to full credits under section 4019.

Authorities

relied: People v. Ibarra (1982) 134 Cal.App.3d 413 — The definition of serious felonies in section 667.5, subdivision (c)(21) does not apply to attempts to commit such felonies.
relied: People v. Garcia (2004) 121 Cal.App.4th 271 — Section 2933.1 limits presentence conduct credits to 15 percent for convictions of serious felonies under section 667.5, subdivision (c).
relied: People v. Singleton (2007) 155 Cal.App.4th 1332 — Defendants convicted only of an attempt to commit a serious felony are not subject to the conduct credit limitations of section 2933.1 and are entitled to full conduct credits under section 4019.

The appellate opinion: sound — The opinion is sound because it correctly identifies the legal distinction between completed and attempted serious felonies regarding conduct credit limitations. It relies on established case law (Ibarra, Garcia, Singleton) to support the conclusion that the statutory limitation does not apply to attempts.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court sentenced Silva to five years eight months after a jury convicted her of attempted first degree residential burglary with a non-accomplice present, and limited her presentence conduct credits to 15 percent under Penal Code section 2933.1 on the theory that the offense fell within section 667.5, subdivision (c)(21). The Court of Appeal accepted the People's concession that an attempt is not within section 667.5, subdivision (c)(21), held section 2933.1 does not apply, and affirmed as modified with a remand to recalculate credits under section 4019 and amend the abstract of judgment.

Ruling reviewed	Standard	The court	The model
Limitation of presentence conduct credits to 15 percent under Penal Code section 2933.1 on the ground that attempted first degree residential burglary with a person present is a felony listed in section 667.5, subdivision (c)(21) “Where a person, like Silva, is only convicted of an attempt to commit a serious felony the limitations of section 2933.1 do not apply. Thus the person is entitled to the full conduct credits authorized by section 4019.”	unclear	error (statutory interpretation)	agree with court Section 2933.1 applies only to felonies listed in section 667.5, subdivision (c), and subdivision (c)(21) names completed first degree burglary with a person present; it does not mention attempts. People v. Ibarra holds that section 667.5, subdivision (c) does not reach attempts absent express language, so the 15 percent cap did not apply and Silva was entitled to section 4019 credits. The court did not state a standard of review, but the question is purely legal and the People conceded the point. The opinion repeatedly says 'serious felony' when section 667.5, subdivision (c) and section 2933.1 concern 'violent' felonies (serious felonies under section 1192.7, subdivision (c) expressly include attempts), but this mislabeling does not affect the outcome because section 2933.1 is keyed to section 667.5, subdivision (c).

Authorities

relied: People v. Ibarra (1982) 134 Cal.App.3d 413 — The list of violent felonies in Penal Code section 667.5, subdivision (c) does not include attempts to commit the enumerated offenses unless expressly stated.
relied: People v. Garcia (2004) 121 Cal.App.4th 271 — Penal Code section 2933.1 limits presentence conduct credits to 15 percent of actual time served for persons convicted of a felony listed in section 667.5, subdivision (c).
relied: People v. Singleton (2007) 155 Cal.App.4th 1332 — A defendant not convicted of a section 667.5, subdivision (c) violent felony is entitled to full presentence conduct credits under section 4019 rather than the 15 percent limit of section 2933.1.

The appellate opinion: sound with gaps — The result is correct: section 2933.1 is keyed to the violent felony list in section 667.5, subdivision (c), and under Ibarra subdivision (c)(21) does not reach attempted burglary, so full section 4019 credits were owed. The opinion, however, repeatedly and inaccurately calls section 667.5, subdivision (c) offenses 'serious felonies' (the statute it quotes in footnote 2 says 'violent felony'), a conflation that could mislead because serious felonies under section 1192.7, subdivision (c) do include attempts.

How this analysis was made · dispute it

inconsistent with cited authority

Opinion

Filed 6/22/16 P. v. Silva CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068855

Plaintiff and Respondent, v. (Super. Ct. No. SCN335445-2)

RUTH CARMENCITA SILVA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed as modified and remanded with directions.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Ruth Carmencita Silva of one count of attempted residential burglary (Pen. Code,1 §§ 664, 459). The jury also found that an individual, other than the accomplice, was present during the commission of the offense. The court sentenced Silva to an aggregate term of five years eight months in prison. The sentence was comprised of three years for attempted burglary and a consecutive term of two years eight months for convictions in two other cases as a result of a plea bargain.

The court awarded 260 days of actual custody credits and 39 days of conduct credits in the present case pursuant to section 2933.1.

Silva appeals challenging only the limitation on preconviction conduct credits.

She contends that the conviction for attempted first degree residential burglary is not a serious felony within the meaning of section 667.5, subdivision (c)(21),2 therefore the conduct credit limitation of section 2933.1 does not apply. The People correctly concede that attempted residential burglary is not a serious felony. They agree that Silva is entitled to further conduct credits under section 4019, subdivision (f). We accept the 1 All further statutory references are to the Penal Code unless otherwise specified.

2 Section 667.5, subdivision (c)(21) provides: "(c) For the purpose of this section, 'violent felony' shall mean any of the following: [¶] (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary."

2 concession and will remand the case to the superior court to recalculate Silva's presentence credits.3

DISCUSSION

Case law has established that the definition of serious felonies as set forth in section 667.5, subdivision (c)(21) does not apply to attempts to commit such felonies.

(People v. Ibarra (1982) 134 Cal.App.3d 413, 425.)

Where a person is convicted of a serious felony under subdivision (c) of section 667.5, section 2933.1 limits presentence conduct credits to 15 percent of the actual time served. (People v. Garcia (2004) 121 Cal.App.4th 271, 276.) Where a person, like Silva, is only convicted of an attempt to commit a serious felony the limitations of section 2933.1 do not apply. Thus the person is entitled to the full conduct credits authorized by section 4019. (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.) Since the court improperly limited Silva's conduct credits, we will remand the case to the superior court to recalculate the presentence credits.

DISPOSITION

The trial court is directed to recalculate Silva's presentence credits in accordance with the views expressed in this opinion. After the credits are recalculated, the court shall modify the judgment accordingly. The court is directed to amend the abstract of 3 The facts of the underlying offense are not relevant to the issues on this appeal. Thus, we will omit the traditional statement of facts.

3 judgment and to forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.

Cites, in this corpus

People v. Singleton B193159 · 2007-10-04
People v. Garcia B168985 · 2004-08-17
People v. Ibarra Crim. 13405 · 1982-07-28