IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
December 14, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANGELINA PATINO-GONZALEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF094831)
The opinion of the court was delivered by: Cantil-sakauye, J.
P. v. Patino-Gonzalez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Angelina Patino-Gonzalez entered a negotiated plea of no contest to transporting methamphetamine in exchange for the dismissal of the remainder of the complaint and a stipulated prison sentence. The trial court subsequently sentenced her in February 2010 in accordance with the terms of the plea. In this case, the court awarded defendant 129 days of custody credit while in the Yolo County Jail from October 13, 2009, to the date of sentencing (February 18, 2010), and 129 days of conduct credit, pursuant to the January 2010 amendments to Penal Code section 4019. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
On appeal, defendant contends only that she was entitled to additional credit for custody in the Sacramento County Jail from her arrest in April 2009 through October 2009, on charges in that jurisdiction that arose out of the same circumstances as the present charges. The People contend the trial court awarded one day too many in conduct credits. We will affirm the judgment.
The recited factual basis for the present conviction stated that defendant, under continuous surveillance, left her place of employment and drove directly to a Home Depot parking lot, where officers detained her and found a half-pound of methamphetamine in the car. The probation report quotes a report from the Sacramento County Sheriff's Department, which provides additional details. A multi-jurisdictional drug-enforcement team had been keeping defendant under surveillance. On April 30, 2009,*fn1 she left her place of business in Sacramento and drove to a Home Depot in West Sacramento, where members of the team found the contraband in her car and arrested her. A search of her home in Elk Grove in Sacramento County yielded a digital scale and over five grams of methamphetamine. On her arrest, she was transported to the Sacramento County Jail. The Sacramento prosecutor filed a complaint in May 2009 (case No. 09F03275). Although defendant transported the contraband in both counties, the Sacramento County complaint charged her only with simple possession of methamphetamine.*fn2 She remained in custody in Sacramento County until October 8, 2009, when the court granted her motion for release on her own recognizance. Yolo County issued a warrant for her arrest and took her into custody five days later. In light of the disposition in the present case, the Sacramento County prosecutor dismissed case No. 09F03275 on February 18, 2010.
At sentencing, defense counsel sought custody credit for defendant's Sacramento jail time. The trial court denied the request, ruling that the Sacramento custody was attributable to the Sacramento charges. While defendant initially stated that the additional custody credit was a basis for her plea in the present case, she reaffirmed her plea after briefly consulting with counsel.
"Credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (Pen. Code, § 2900.5, subd. (b).)
Based on the misinformation in the probation report about the nature of the charges in Sacramento County, defendant argues in her opening brief that the custody in the Sacramento County Jail was attributable to "a single course of conduct" that also gave rise to her conviction in the present case. Based on this mistaken premise, she argues that she is entitled to credit for all custody that she served for that offense. She also argues that she did not derive any benefit from dismissal of the Sacramento County charges, because Penal Code section 654 would have required a stay of sentence on them.
The People identified the mistaken basis of defendant's argument in their brief, and defendant did not file a reply brief contesting this interpretation of the record. The People cite to a hypothetical that In re Marquez (2003) 30 Cal.4th 14 posits (in a situation involving credit for post-sentencing custody in one county--where that case is ultimately dismissed after sentencing--against pending charges in another county that had placed a hold on defendant throughout his custody), which is directly on point: "To deny petitioner credit for his time spent in custody [after sentencing in the original county and before sentencing in the other county] would render this period 'dead time,' that is, time spent in custody for which he [does not] receive [any] benefit. Sometimes this result is unavoidable. For example, had petitioner's Santa Cruz County presentence custody been attributable solely to the Santa Cruz County charges (that is, had Monterey County never placed a hold), dismissal of the Santa Cruz County charges would have left petitioner with[out any] sentence against which credit for that period could be applied." (Id. at pp. 20-21.) In the present case, defendant's presentence custody in Sacramento County was attributable solely to the charge of possession of methamphetamine in Sacramento County, which leaves her without any sentence against which to apply credit for that period. She therefore is not entitled to any additional credit against her Yolo County sentence for transporting methamphetamine.
The Supreme Court has granted review in our decision of People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963) (Brown) to resolve a split in authority over the retroactivity of amendments to the provisions of former section 4019 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) governing the award of presentence conduct credits, which went into effect in January 2010. In our March 2010 miscellaneous order No. 2010-02, we had deemed this issue to be raised in all pending appeals without further briefing.
The Legislature subsequently revamped the statutory scheme for calculating these presentence conduct credits, which went into effect on September 28, 2010. (Stats. 2010, ch. 426, § 5.) For defendants sentenced to prison, section 2900.5 continues to govern credit for actual presentence custody attributable to their convictions. (In re Marquez (2003) 30 Cal.4th 14, 19.) However, for defendants who do not have any past or present convictions for "serious" or violent felonies, and who are not subject to registration as a sex offender, section 2933 (which previously had applied only to worktime credits in prison) now governs their entitlement to presentence conduct credits. Under section 2933, as amended, these qualifying defendants receive one day of presentence conduct credit for each day of actual custody. (§ 2933, subd. (e)(1) [Stats. 2010, ch. 426, § 1].) This represents a beneficial change for such defendants, because former section 4019 had required two-day increments of actual custody for the calculation of conduct credit. (§ 2933, subds. (b)(1), (b)(2), & (f) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) This meant that defendants with an odd number of days of actual custody would not get conduct credit for the odd day.
Although the amendments to current section 4019 expressly apply only to crimes committed after their effective date (id., subd. (g) [Stats. 2010, ch. 426, § 2]), the Legislature did not include any similar provision for prospective effect of the amendments to section 2933. By parity of reasoning to the conclusions in Brown (to which we adhere), the September 2010 amendments to section 2933 therefore apply to all appeals still pending at the time of their enactment. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [amendments that lessened punishment for crime apply to acts committed before passage, provided judgment is not final]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [both of which apply Estrada to amendments involving custody credits].) We therefore reject the People's contention that we must reduce defendant's conduct credits by one day.
The People's motion for judicial notice is granted. The judgment is affirmed.
We concur: HULL , Acting P. J. BUTZ, J.