IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
December 6, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SEAN MICHAEL BURDAN, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Robie ,j.
P. v. Burdan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On February 21, 2007, in exchange for the dismissal of other counts and the return of a Ford Explorer, defendant Sean Michael Burdan pled no contest to cultivation of marijuana. On November 21, 2006, officers found defendant operating an indoor marijuana farm consisting of 139 plants and found nearly 19 pounds of processed marijuana and some concentrated cannabis on the premises. On April 25, 2007, the trial court granted defendant probation.
On appeal from the order granting probation, we ordered the trial court to clarify which fees were and were not conditions of probation, but otherwise affirmed. (People v. Burdan (May 2, 2008, C055617) [nonpub. opn.].)
On January 12, 2010, a petition for violation of probation was filed, alleging defendant had committed three crimes on July 3, 2009, and had failed to report to his probation officer as directed since October 1, 2009. The trial court summarily revoked probation and issued a bench warrant.
On March 9, 2010, the parties represented that in another county, defendant had "pled" to one of the crimes alleged as a violation of probation, and the other two crimes had been dismissed. Defendant then admitted he had violated his probation by committing a new crime and by failing to report to his probation officer as directed.
On April 6, 2010, the trial court declined to reinstate probation and sentenced defendant to the midterm of two years in prison. Defendant timely appealed.
On August 10, 2010, the trial court modified the judgment by granting defendant 139 days of actual presentence credit and 138 days of conduct credit, and made other minor modifications.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Under a conduct credit formula recently enacted, most defendants accrue presentence conduct credits at the rate of one day per day of actual presentence custody. (Pen. Code, § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, eff. Sept. 28, 2010].) We conclude this new formula applies to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies provided the judgment of conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393; People v. Doganiere (1978) 86 Cal.App.3d 237.) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 2933, subd. (e).)
Accordingly, having served 139 days of actual custody, defendant is entitled to 139 days of conduct credit, rather than the 138 days awarded by application of a prior formula, and we modify the judgment to award that amount. (Pen. Code, § 1260.)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to award defendant 139 days of presentence conduct credit and is affirmed as so modified. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
RAYE , Acting P.J.
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