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The People v. Rosemary Diaz Thompson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 8, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROSEMARY DIAZ THOMPSON, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed. (Super.Ct.No. FSB058731)

The opinion of the court was delivered by: Ramirez P. J.

P. v. Thompson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant and appellant Rosemary Diaz Thompson appeals from an award of custody credits made after she admitted violating her probation and was ordered to spend 365 days in county jail. The sole issue raised in her appeal is whether the trial court erred when it declined to retroactively apply an increase in custody credits made available as a result of an amendment to Penal Code section 4019,*fn1 which was effective January 25, 2010.

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2006, defendant was charged as follows: count 1, driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); count 2, being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); count 3, possession of heroin (Health & Saf. Code, § 11350, subd. (a)); and count 4, transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). On January 30, 2007, pursuant to a plea agreement, defendant pled guilty to count 1, driving under the influence, and count 3, possession of heroin. She also admitted a prior conviction for driving under the influence. The remaining counts were dismissed.

On March 29, 2007, the court granted defendant probation for a period of 36 months subject to various terms and conditions, including 180 days in county jail. Thereafter, defendant's probation was revoked and reinstated on two separate occasions when she admitted violating the conditions of her probation. When her probation was reinstated, defendant's jail time was increased from 180 days to 270 days, and then to 365 days.

When the court reinstated defendant's probation for the second time on May 17, 2010, and increased her jail time to 365 days, the court also awarded conduct credits at two separate rates based on an amendment to section 4019. For actual days served prior to January 25, 2010, the effective date of the amendment, the court awarded conduct credits at the old rate. For actual days served on or after January 25, 2010, the court awarded conduct credits at the new, increased rate.

DISCUSSION

Relying on the reasoning in our Supreme Court's decision in the case entitled In re Estrada (1965) 63 Cal.2d 740, defendant contends she is entitled to retroactive application of the increase in custody credits resulting from an amendment to section 4019, which was effective January 25, 2010. However, in People v. Otubuah (2010) 184 Cal.App.4th 422, 436 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314, we recently concluded the reasoning of Estrada does not apply to the increase in section 4019 custody credits. In our view, the statutory amendment to section 4019 only applies prospectively. Some appellate courts have reached a different conclusion. As defendant acknowledges, the issue is presently before our Supreme Court, which has granted review in this and other cases that have addressed the issue, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808. We stand by our reasoning and decision in Otubuah. In other words, for the reasons outlined in Otubuah, we conclude the trial court appropriately awarded conduct credits at two separate rates, with the new, increased rate only applying to actual days served on or after January 25, 2010, the effective date of the amendment to section 4019.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: HOLLENHORST J. McKINSTER J.


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