(Santa Clara County Super.Ct.No. CC808396; CC828307)
The opinion of the court was delivered by: Duffy, J.
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Defendant Mustafia Rabb Wall pleaded no contest in one case (Case No. CC808396) to transportation of a controlled substance, a felony, and being under the influence of a controlled substance, a misdemeanor. He also admitted that he had two prior drug convictions. In a second case (Case No. CC828307), defendant pleaded no contest to two felony counts of resisting a peace officer and admitted that he had suffered one prior felony for which he had been committed to state prison. On October 22, 2009, defendant was sentenced to prison for a total term of six years, four months.
Defendant asserts that he should receive additional presentence conduct credits in accordance with an amendment to section 4019 of the Penal Code, effective January 25, 2010, that he contends should be applied retroactively to his circumstances.*fn1 We conclude that this amendment to section 4019 should not be applied retroactively to instances, such as presented here, where the defendant was convicted and sentenced prior to the effective date of the amendment, but the judgment did not become final until after such effective date. We will therefore affirm the judgment.
On June 10, 2008, at approximately 8:00 p.m., San Jose Police Officer Michael Ruybal conducted a traffic stop of a car with three occupants driving on Story Road in San Jose. As Officer Ruybal spoke with the driver, he noticed that defendant, in the front passenger seat, was crumpling a plastic baggie in his hand. The officer determined that defendant was on parole; after he got out of the car, defendant no longer had the baggie. Officer Ruybal discovered an empty baggie on the front passenger seat and a white crystalline substance piled up on the floorboard between the front passenger seat and the door. The officer collected a portion (5.63 grams) of the substance (a considerable amount was stuck in the carpet), which was later determined from testing to be methamphetamine. Based upon the quantity involved and the fact that a digital gram scale was in the front passenger seat, Officer Ruybal concluded that the methamphetamine was being possessed for the purpose of being sold. It was later determined from chemical testing that defendant had been under the influence of methamphetamine.
On December 10, 2008, San Jose Police Officers Wendell Martin and Jim Lisius made a traffic stop on Snell Avenue in San Jose. Defendant was the front seat passenger. After speaking with defendant for several minutes--and after noticing defendant's nervousness, dry mouth, constricted pupils, rapid speech, and rapid pulse--Officer Martin concluded that he was under the influence of a stimulant. Defendant gave a false name (Devin Campbell) in response to the officer's inquiry about his identity.
As Officer Lisius attempted to remove him from the car, defendant attempted to crawl past the driver's area and through the open door. After Officer Lisius pulled defendant back, he began fighting with both officers. His shoulder struck Officer Lisius in the face, causing his glasses to fall off, and then he punched the officer in the face. In the struggle, Officer Martin fell onto the ground. Both officers wrestled with defendant on the ground in an effort to subdue him. After defendant and Officer Lisius regained their footing, Officer Lisius attempted to tase defendant, but he took the taser away from the officer. Officer Lisius then pulled his gun and threatened to shoot him; defendant pulled the trigger on the taser, but "nothing happened." Defendant and Officer Lisius continued to struggle near the driver's door of the patrol car, but defendant broke free. While he was running away, defendant tripped in a grassy area. As both officers attempted to subdue him, and after ...