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The People v. Gustavo Rafael Ruiz

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 2, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GUSTAVO RAFAEL RUIZ, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Cantil-sakauye ,j.

P. v. Ruiz CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Butte)

In November 2009, agents from Butte and Glenn County narcotics task forces searched defendant Gustavo Rafael Ruiz's vehicle after a traffic stop. The agents found two cell phones, 298.2 grams of cocaine, and $6,000 in cash. They executed a search warrant on defendant's house, and found $4,040 in cash, and 18 sandwich baggies, each containing approximately one ounce of cocaine. The cocaine in the house was accessible to defendant's five children. Defendant admitting selling cocaine for the last three years.

Defendant entered a negotiated plea of no contest to possession of cocaine for sale (Health & Saf. Code, § 11351) and misdemeanor child endangerment (Pen. Code, § 273a, subd. (a)). The court sentenced defendant to four years in state prison, and awarded 97 days' presentence credit (65 days' actual and 32 days' conduct).

Defendant's sole contention on appeal is that the court should have applied the recent amendments to Penal Code section 4019 to the award of credits.*fn1 He is correct.

We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (Sen. Bill No. 76), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. SBX3 18 when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)

The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in Penal Code section 2933 applies retroactively to all appeals pending as of September 28, 2010. Therefore, having served 65 days in actual custody, defendant is entitled to 65 days of presentence conduct credit, rather than the 32 days awarded by the trial court.

DISPOSITION

The judgment is modified to reflect that defendant is entitled to a total of 130 days of presentence custody credits, consisting of 65 days of actual custody plus 65 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur:

SCOTLAND , Acting P. J.*fn2

BUTZ ,J.


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