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The People v. Zachary Terry Harris

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


December 9, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ZACHARY TERRY HARRIS, SR., DEFENDANT AND APPELLANT.

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

P. v. Harris 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In October 2008, defendant, Zachary Terry Harris, Sr., possessed methamphetamine. In case No. SF109806A, defendant entered a negotiated plea of guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The court sentenced defendant to two years in prison, suspended execution of sentence, and placed defendant on felony drug court probation.

In January 2009, defendant gave a false name to an officer at a traffic stop. A search of defendant discovered a fake California driver's license and two counterfeit $100 bills. The court found defendant violated his probation and sentenced him to two years in prison. The court awarded defendant 266 days of presentence custody credit (178 days actual and 88 days conduct).

On appeal, defendant raises two claims regarding his presentence custody credits. He first contends that he spent 190 days in presentence custody rather than the 178 days determined by the trial court. The Attorney General agrees the trial court erred, but asserts defendant only served 176 days of presentence custody.

Defendant was taken into custody on October 10, 2008. He entered a guilty plea and was granted probation on October 31, 2008. No additional jail time was ordered as part of the grant of probation.

On November 3, 2008, defendant was transferred to the Department of Corrections and Rehabilitation for a parole violation, and was paroled on November 5, 2008. Defendant was arrested on new charges on January 16, 2009, and arraigned on the petition to violate his probation on January 21, 2009. He was sentenced on the probation violation on June 18, 2009.

Defendant was in custody from October 10 to October 31, 2008, a total of 22 days in custody. He gets no credit for the time served on the parole violation in November 2008, as he was in custody for conduct not attributable to the offenses in this case. (People v. Bruner (1995) 9 Cal.4th 1178, 1180.) Defendant was next in custody from January 16, 2009, to June 18 2009, a period of 154 days. Thus, defendant served a total of 176 days of presentence custody.

Defendant also contends that the amendments to Penal Code section 4019 apply to his award of presentence custody 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].)

Defendant is not among the prisoners excepted from additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Therefore, having served 176 days in actual custody, defendant is entitled to 176 days' presentence conduct credits.

DISPOSITION

The judgment is modified to reflect that defendant is entitled to a total of 352 days of presentence custody credits, consisting of 176 days of actual custody plus 176 days of conduct credits. 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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